Windrush Generation: 75th Anniversary
 - Question

Baroness Berridge: To ask His Majesty’s Government what plans they have to celebrate the 75th anniversary of the arrival of the Windrush generation on 22 June, and what progress they have made in relation to those plans.

Baroness Scott of Bybrook: My Lords, we expect Windrush Day 2023 to be a bigger national event than any year to date. In January, the Government announced that they are increasing this year’s Windrush Day grant scheme from £500,000 to £750,000 to mark the 75th anniversary, with funds aimed at commemorating, celebrating and educating people about the contribution of the Windrush generation and their descendants. We will announce all successful projects shortly. In addition, we are progressing several further events across government to celebrate and honour the Windrush legacy on this important milestone.

Baroness Berridge: I am very grateful to the Minister, particularly for the additional funds that have been made available. As I am sure she is aware, many of that generation came for better education and opportunities for their children, so it is sad to note that the Commission on Race and Ethnic Disparities found that the only ethnic minority group not out- performing their white counterparts at age 16 is the black Caribbean and mixed white and black Caribbean cohort. Can the Minister please ask whether Windrush scholarships, in FE as well as HE, could be established?

Baroness Scott of Bybrook: My noble friend brings up a really interesting idea, and I will certainly take it back to my colleagues in the Home Office. I am pleased the Minister in question is sitting here, and I hope he is listening carefully because I think that would be a very nice idea for the 75th anniversary.

Baroness Benjamin: My Lords, I wrote to the Prime Minister in February suggesting that, like his predecessors, he host a reception at No. 10 to celebrate Windrush Day and to meet the Windrush community and Windrush victims to hear their harrowing stories. I have not received a reply. He did not attend the Stephen Lawrence 30th memorial service, despite being down to speak. The Windrush community is questioning his support for them, so can the Minister assure the House that the Prime Minister is intending to demonstrate that he cares about the Windrush 75th anniversary?

Baroness Scott of Bybrook: I am afraid I cannot give that sort of information about what the Prime Minister is doing for Windrush, but I can say that across government there are numerous events going on. For a start, the Foreign Secretary has visited Jamaica only recently and discussed the positive contribution that Caribbean immigration had made to the fabric of the UK. The Ministry of Defence is using Windrush 75 as part of its Armed Forces Week, and we will be announcing plans in due course about what other departments will be doing to celebrate.

Baroness Chakrabarti: My Lords, in addition to parties and such celebrations, which I am sure we all welcome, might the Government not remember the Windrush generation by adequately compensating all those who are still waiting for justice—and not getting any younger?

Baroness Scott of Bybrook: We are paying out continually under the compensation scheme, and the Home Office continues to make improvements to how easily people can access that scheme. We have paid out £59.55 million across 1,599 claims to the end of March 2023, a further £11.11 million has been offered and is awaiting acceptance, and a final decision has been made on 62% of the claims—so we are working on this. We are working with claimants on how we can make it easier and will continue to do so.

Lord Kamall: I thank my noble friend the Minister for sharing the plans to celebrate the Windrush generation, but can we make sure that we celebrate the full diversity of that generation—not just the Afro-Caribbeans but the Indo-Caribbeans and Chinese-Caribbeans who came to the UK and worked in public services? I declare a personal interest in that my father came in 1952 on two boats: one from Guyana to Trinidad, and then one from Trinidad to the UK.

Baroness Scott of Bybrook: My noble friend is absolutely right that we should celebrate the whole generation and that group of communities. Looking at what is happening in London and Birmingham, I am sure that all those communities will be represented and celebrated.

Lord Dobbs: My Lords, is my noble friend aware of the beautiful statue in Waterloo station commemorating the Windrush generation? It shows a father looking forward with ambition and determination, accompanied by a mother and a young daughter looking around with expectation and trepidation. They are standing on a pile of suitcases, which mark all their possessions in the world. There is an accompanying poem called “You Called … We Came”.
I hear the Minister’s reflections on the amount that has already been paid out, but there are still some outstanding claims. One wonders whether it is bureaucratic difficulties, rather than genuine will, driving that. Could not all those outstanding claims be settled almost in an afternoon, with people—including Ministers, with all their genuine determination to get this fixed—sat around a table, rather than having the ongoing questions that the noble Baroness, Lady Chakrabarti, has asked about when this will finally be settled?

Baroness Scott of Bybrook: First, yes, the monument is beautiful; if anybody has not seen it, they should do so. It is very moving and beautiful. The Home Office is making the compensation payments as quickly as possible, but each person’s claim is deeply personal and deserves to be processed with the utmost care and sensitivity, so that the maximum payment can be made to them. That is the way we are going to deal with these claims.

Bishop of Chelmsford: My Lords, the way that this country welcomes a stranger has never been more important, as we will be reminded later today when we debate the Illegal Migration Bill. Why are His Majesty’s Government, but more specifically the Home Secretary, rowing back on the commitments they made following the Windrush Lessons Learned Review, especially on the establishment of a new migrants’ commissioner?

Baroness Scott of Bybrook: The right reverend Prelate is referring to the Wendy Williams recommendations. Home Office officials looked at them and recommended to the Home Secretary that three of them are not needed. Extensive consideration has been given to how we deliver all the recommendations in an appropriate and meaningful way, ensuring that individuals have the opportunities to tell all their stories, amplifying the voices of individuals, engaging with the immigration system and driving scrutiny of the department. We think that those recommendations are unnecessary at the moment.

Lord Khan of Burnley: My Lords, we all owe enormous gratitude to the Windrush generation, who played a pivotal role in rebuilding the Britain that we know today. The Minister may recall that, during a debate in January, I asked her for a timetable for the Home Office’s implementation of the Wendy Williams recommendations. Unfortunately, less than a week later, the Home Secretary announced that some measures would not be delivered. I ask the Minister today for an update on the implementation of the measures the Government are committed to. It is tragic that the Home Secretary has not learned the lessons of that appalling scandal. Are the Government still not introducing the proposed safeguards to strengthen the borders inspectorate?

Baroness Scott of Bybrook: As I said in a previous answer, we will not be implementing those three recommendations. I probably have not got time to address here how far we have got with the other recommendations, but I will write to the noble Lord once I get that detailed information from the Home Office.

Baroness Blower: Does the Minister agree that on the occasion of this anniversary, it would be extremely fitting for His Majesty’s Government to announce that anti-racism should be an explicit part of the national curriculum, to be taught in all our schools in England?

Baroness Scott of Bybrook: That should be discussed and decided by the Department for Education; but now, when we are celebrating the wonderful part that the Windrush generation has played in our society, is not the time for us to discuss that.

Lord Polak: My Lords, the 75th anniversary is perhaps a good moment for the Government to look at the issue of frozen pensions. Many people came over, helped to rebuild Britain, went back to retire in their home countries in the Caribbean and found that their pensions had been frozen, thereby missing out on thousands of pounds. Can the Minister go back to the department and find a way to alleviate this problem?

Baroness Scott of Bybrook: Yes, my noble friend is right: it is an issue and a problem. I will make sure that the Home Office is working on it and we will give him an update.

Tourist Spending: VAT
 - Question

Baroness Doocey: To ask His Majesty’s Government what assessment they have made of the impact of VAT on tourist spending.

Baroness Penn: The Government engaged with varied stakeholders and produced analysis on the cost of VAT-free shopping before withdrawing the previous scheme. Government analysis done in 2022 that took increased tourist spending into account found that introducing worldwide VAT-free shopping would come at a fiscal cost of £2 billion each year. Furthermore, the OBR’s assessment of the previous VAT-free shopping scheme showed that its withdrawal would have a limited behavioural effect on decisions to visit or spend in the UK.

Baroness Doocey: I find it so difficult to understand why the Government keep saying that the reintroduction of VAT-free shopping for tourists would be a problem for the country and would cost much more than it would bring in. All the mounting evidence suggests that the opposite is the case. The tourists who come to the UK at the moment are spending about the same as they did in 2019, but US tourists who are going to France, Spain and Italy are spending at the rate of three times what they did in 2019. Does the Minister really believe that this disparity is nothing to do with the fact that we abolished duty-free spending for tourists? I ask the Minister to at least re-look at the figures as a matter of urgency, because our retailers are really struggling, and they need and deserve a level playing field.

Baroness Penn: My Lords, I reassure the noble Baroness that the Government continue to monitor the evidence around VAT shopping, as we do keep all taxes under review. As to the process the Government went through in making their decision, I reassure the noble Baroness that we engaged with a wide variety of stakeholders on the removal of the VAT scheme, including Border Force, retailers, VAT refund providers, refund agents, airport operators and shoppers. That research took place in parallel with a consultation which produced a range of views. So the Government did make every  effort to look at the evidence available when reaching this decision, including their analysis of the costs of the policy.

Lord Forsyth of Drumlean: My Lords, would my noble friend welcome the conversion of the Liberal Democrats to the idea that cutting taxes results in more revenue? Could she explain to them that, at the moment, we need that revenue because of the level of borrowing the Government have?

Baroness Penn: I absolutely agree with my noble friend that levels of government borrowing are high because of the impact of both the Covid pandemic and the war in Ukraine. One of the reasons that levels of debt are high is that we have provided strong support to sectors such as tourism during the difficult years of Covid, and we are also providing strong support to them to recover from the pandemic and build back visitor numbers.

Earl of Clancarty: My Lords, the Minister should look at the Oxford Economics report from last year, which showed a net economic benefit from tax-free shopping. Does she not accept that this is about an ecology of tourism—not just high-end shopping but the hospitality trade, theatres, concert halls and more? The UK needs to clearly show that it is open for business, as other countries are capitalising on this failure.

Baroness Penn: My Lords, I would say to the noble Lord that the Government have looked very carefully at the Oxford Economics analysis, and we do appreciate that some of the costs would be offset by higher visitor numbers and their spending. However, the OBR’s and the Government’s previous analysis suggested that the offset was marginal and the policy still comes with significant fiscal costs. One of the key differences between the Government’s costings and those produced by Oxford Economics is the assumptions around additional visitor numbers, with the OBR estimating that VAT-free shopping could bring in 50,000 to 80,000 additional visitors and the industry commission report suggesting 1.6 million additional visitors.

Lord Livermore: My Lords, major UK tourist attractions last year saw 38 million fewer visitors than in 2019—a 23% fall—suffering first from lower international tourism because of the pandemic and then lower domestic tourism because of the cost of living crisis. Many of the UK’s seaside towns, already neglected, and with tourist spending in long-term decline, have suffered particularly badly. I ask the Minister what steps the Government are taking to support the regeneration of our seaside towns.

Baroness Penn: The noble Lord makes an important point. We have taken steps during the pandemic to provide support for those towns that rely on tourism; £37 billion of support went to tourism, leisure and hospitality in the form of grants, loans and tax breaks. We have the tourism recovery plan, which is focused on both international visitors and domestic tourism within the UK. We also have the towns fund, which is  specifically focused on helping regenerate towns, including many of the seaside towns that do not tend to benefit from the bigger-city deals.

Lord Lee of Trafford: My Lords, last week, as president of the Association of Leading Visitor Attractions, I received an email from Dr Julia Knights, the deputy director of the Science Museum, who wrote:
“It is devastating to see so few schoolchildren now visiting the Science Museum from France and Germany especially.”
Could the Minister urge our trusty and well-beloved Home Secretary to again press the accelerator, but this time to urgently expedite the visa passport situation for visiting European schoolchildren and, similarly, to urge the Chancellor of the Exchequer to man up and admit that the VAT refund policy needs to be reversed, and do it now and not wait until the Autumn Statement.

Baroness Penn: I am not sure that the reversal of the VAT refund scheme would encourage more schoolchildren to visit the Science Museum. But I will certainly take back the noble Lord’s point about visas to the Home Office.

Lord Hannan of Kingsclere: My Lords, there seems to be a discrepancy between the Treasury figures quoted by my noble friend the Minister and almost every independent survey, including the one referred to by the noble Earl, Lord Clancarty. There is a persistent pattern of the Treasury refusing to take into account the secondary, more dynamic impact of taxes—the way in which lower rates can generate more economic activity. Does my noble friend the Minister think that it might be time to revise the way in which the Treasury does these forecasts, to take account of our observed experience?

Baroness Penn: As I have said to noble Lords, the Treasury took into account a wide range of information when reaching its decision. Indeed, the Treasury was judicially reviewed on the decision to withdraw the VAT RES scheme in Great Britain and successfully defended it, with the judge noting the thorough government analysis. As more evidence and data emerge in this area, we will of course keep it all under review.

Lord Watts: My Lords, perhaps the Minister could give us two figures. What has been the increase or decrease in VAT since this change took place, and what has been the increase and decrease of sales in duty-free shops?

Baroness Penn: It is difficult to disaggregate the impact of this policy versus the overall take of VAT, which will be affected by a wide range of economic factors during this time. When we think about the tourism sector, we must remember that China represents a large number of visitors to the UK and China opened up only at the beginning of this year. Based on that, we hope to see a stronger recovery this summer, compared with previous summers.

Baroness Wheatcroft: My Lords, it is not the number of tourists that is important but the type of tourist. The higher-spending tourists are being deterred  from coming to this country because of the lack of VAT-free shopping, as the figures quoted by the noble Baroness, Lady Doocey, made clear. Those tourists are heading to Spain and France and spending their money there. I declare an interest as chairman of the Association of Leading Visitor Attractions. Our members are losing out because these high-spending tourists are not coming to this country, doing their retail therapy and then taking in museums, galleries et cetera. Will the Minister undertake to take into account our cultural heritage when she looks at this issue?

Baroness Penn: I do absolutely appreciate the point that the noble Baroness is making. As part of the research that we did in considering this question, HMRC surveyed VAT RES users and the scheme did not make the top 10 in their list of reasons for visiting Britain—and that was for the 8% of visitors who qualified for the scheme who actually used it. We also asked them whether they would continue to purchase in the way they had previously. Two-thirds of those surveyed said that they would have purchased the same items regardless of the scheme, and 95% of people said that they would still shop. I appreciate that there is a wider impact, but we considered that when taking this decision.

Baroness Foster of Oxton: My Lords, tourism in England generates £106 billion to the Treasury and underpins 2.4 million jobs. I could never understand why we stopped encouraging people and businesses with the VAT situation and when they were in-bound at airports. I ask my noble friend seriously to reconsider this. Why we would wish to encourage tourists to shop and holiday in different countries around Europe and around the world when we have the greatest capital city on the planet is beyond me.

Baroness Penn: My Lords, the Government are a strong supporter of the UK’s tourism industry and absolutely recognise the contribution that it makes to our economy. As I said earlier, we previously surveyed users of VAT-free shopping. Fewer than 8% of non-EU visitors used it and, for those who did, it was not in their top 10 reasons for visiting the UK. There are many great reasons to visit our country and we will continue to promote and advocate them to people across the country and across the world.

United Nations Population Fund Report
 - Question

Baroness Anelay of St Johns: To ask His Majesty’s Government whether they plan to support the recommendations in the United Nations Population Fund report 8 Billion Lives, Infinite Possibilities: the case for rights and choices and, if so, how.

Lord Goldsmith of Richmond Park: My Lords, the UK is proud to champion comprehensive sexual and reproductive health and  rights, which are fundamental to unlock the potential agency and freedom of women and girls. This is at the heart of our international women and girls strategy. We endorse the recommendations for rights and choices for all. We have a strong relationship with the UNFPA, with funding in place to support programmes that avert millions of unintended pregnancies and unsafe abortions, and prevent hundreds of thousands of maternal and child deaths.

Baroness Anelay of St Johns: My Lords, does my noble friend agree with the report that, in trying to find solutions to build “demographic resilience”, we need to work with
“civil society, the private sector, and families to adopt holistic policies”
on health, better regulation of the labour market and better management of migration, as well as promoting reproductive rights for women and girls? Can he give an example of a FCDO-funded programme which is successful in that regard?

Lord Goldsmith of Richmond Park: The Government share the view outlined by my noble friend, on all the points. As she said, the report makes for grim reading in parts, although I think it is optimistic. We learn, for example, that, in the 68 reporting countries, around 44% of partnered women are unable to make decisions over healthcare, contraception or sex, which I found a shocking figure. The FCDO invests in a broad range of programmes in maternal, newborn and childcare, such as on access to voluntary family planning, HIV/AIDS care and ending FGM. My noble friend asked for examples. These include: the Global Financing Facility; reproductive health supplies; and our support for the FP2030, the grass-roots Safe Abortion Action Fund, and the Africa-led movement to end FGM, to name just a few.

Baroness Blackstone: My Lords, the UN report estimates that 257 million people around the world do not have direct access to safe and reliable contraception, which means that they have no choice in deciding how many children they want. In the light of this, is it not crucial to restore the family planning programmes that have been cut by the Government as a result of the reduction in development aid from 0.7% to 0.5% of GNI? How soon will these reductions, which the Government made, be reversed, in particular to their aid for family planning?

Lord Goldsmith of Richmond Park: I cannot give a date for the return to 0.7% from 0.5%. I hope that happens as soon as possible; I know that view is shared by many in this House. But we remain a significant funder. Between 2015 and 2020, we supported an annual average of 25 million women and girls to use voluntary modern contraception. We believe that, every year, that prevented nearly 9 million unintended pregnancies and 2.8 million unsafe abortions, and saved more than 8,000 women’s lives, as well as preventing the trauma of over 81,000 stillbirths and 48,000 newborn deaths. Since 2018, our aid to the women’s integrated sexual health programme has supported nearly 10 million women to use modern methods of contraception.  We believe that in 2021 over 12,000 maternal deaths and 1.8 million unsafe abortions were averted as a direct consequence.

Lord Collins of Highbury: My Lords, I totally agree with the noble Baroness’s supplementary question about taking a holistic approach, but the noble Lord keeps quoting spending figures. I respect the Government’s commitment, but they implemented an 85% cut in funding to the UNFPA. Instead of telling us what they are spending, can the Minister tell us what the impact of that 85% cut was on the women’s health programmes on which we have been focused?

Lord Goldsmith of Richmond Park: My Lords, I cannot put numbers to the noble Lord’s question, but I can say that in our integrated review and the international development strategy—IDS—the Foreign Secretary and the Prime Minister have set a clear direction and this remains a priority issue. We remain significant global funders. We are a long-standing partner of the UNFPA and we remain a lending funder of its Supplies Partnership, which is dedicated to the procurement and distribution of contraceptives and maternal health medicines in 53 of the world’s poorest countries. The impact of that has been dramatic; I will avoid the temptation to go through the figures, but I do not think anyone doubts the UK’s commitment or the impact of its funding.

Baroness Hussein-Ece: My Lords, I declare an interest as the co-chair of the APPG on Population, Development and Reproductive Health. The Minister quite rightly quoted the staggering figure of 44% of partnered women who are unable to exercise bodily autonomy and said that we should be ensuring that each individual is free to choose their own reproductive future. Can I ask him specifically what the FCDO is doing to promote the fact that as a global society we must guarantee that women have the ability and rights to make reproductive and sexual health decisions free from discrimination, coercion and violence? What specific programmes are attached to the ones he has already mentioned that will underline these choices?

Lord Goldsmith of Richmond Park: Again, I agree with the premise of the noble Baroness’s question. In 2021, we were the second-largest global bilateral donor on family planning. We delivered on the 2017 summit commitment to spend an average of £225 million a year on family planning over five years to 2022. Between 2015 and 2020 we believe we reached nearly 25.5 million women and girls with modern methods of family planning. This remains a major focus in UK bilateral and multi- lateral spending in relation to women and girls.

Baroness Sugg: My Lords, given the findings of the UNFPA report, I welcome the publication of the FCDO’s international women and girls strategy. As my noble friend the Minister says, it recognises the importance of continued UK work on sexual and reproductive health and rights and notices the regrettable global rollback on women’s rights. What are the Government doing to ensure that the strategy is properly institutionalised across our diplomatic networks?

Lord Goldsmith of Richmond Park: My noble friend is right to make this point. There is no point having a strategy of the sort we have just published if it is not embedded internationally through our posts. I assure the noble Baroness and the House that all posts will implement the strategy. They have been directed to do so by the Prime Minister and the Foreign Secretary. To reinforce that, although it preceded the strategy, this issue is placed centrally as a high priority, indeed a top priority, in both the IDS and the integrated review.

Lord Watts: My Lords, does the Minister share our amazement that despite the amount of money we spend on aid here, around Europe and around the world that so many women have no access to family planning? Surely this should be our number one priority and should take precedence over some of the other programmes.

Lord Goldsmith of Richmond Park: On one level I am inclined to agree with the noble Lord but there are so many important themes that the Foreign Office has prioritised in our integrated review and our IDS—there is permanent tension between competing causes. It is a priority for the Government—that has been made crystal clear in all the key documents that have been produced in the last couple of years that set the direction of our funding for the next decade—but it is not the only priority.

Lord Farmer: My Lords, the report we are discussing says much about rights and choices but nothing about parenting capacity and skills. What are the Government doing, particularly in the education system, to inform our young people about the responsibilities and realities of parenthood, which are hugely demanding, regardless of income levels?

Lord Goldsmith of Richmond Park: This is another important point. I assume that the noble Lord is talking about what we are doing here in the UK. I am straying a bit but to prepare children for life in modern Britain pupils need to understand the world in which they are growing up. We want to support all young people to lead happy, healthy and safe lives and to foster respect for other people and for differences. That is why we made the new subjects of relationships education for primary schools and relationships and sex education for secondary schools and health education for all pupils in state-funded schools compulsory as of September 2020.

Earl of Sandwich: My Lords, the Minister has given us an impressive list of programmes for women and girls and emphasised the human rights, which is correct, but no mention was made of men. Presumably men are the target of family planning programmes as well. Do the Government have any method of monitoring what they are doing to involve men in these family planning events?

Lord Foulkes of Cumnock: That includes Boris Johnson!

Lord Goldsmith of Richmond Park: The noble Lord makes an important point—

Noble Lords: Oh!

Lord Goldsmith of Richmond Park: I am talking about the noble Earl over here, although I will convey the other noble Lord’s comments to my friend in the other place. Of course, many of the programmes that I have described—and I do not have time to go into detail—focus not just on women and girls but on the entire family. They focus on society. I mentioned earlier and repeat that 44% of partnered women are unable to make decisions over their own healthcare, contraception or sex. The answer to that lies not just with women but with broader society as well, of course.

Sudan: Refugees
 - Question

Archbishop of Canterbury: To ask His Majesty’s Government what steps they are taking to assist the government of South Sudan to support refugees from the conflict in Sudan.

Lord Goldsmith of Richmond Park: My Lords, I thank the most reverend Primate the Archbishop of Canterbury for his Question and for his long-term and outstanding commitment to the people of South Sudan, including on his recent visit to Juba with the Holy Father and the Moderator of the Church of Scotland.
The violence in Sudan has displaced more than 1 million people internally within the region, including approximately 73,600 people fleeing to South Sudan, where the humanitarian situation is already at crisis level. The UK Government allocated an initial £5 million, including £2 million in South Sudan, to meet the urgent needs of refugees and returnees who are fleeing the violence in Sudan. Today, the Minister for Development and Africa has announced £143 million in humanitarian aid for east Africa, including nearly £20 million for South Sudan.

Archbishop of Canterbury: I am grateful to the Minister for his response. Given that the peace agreement in South Sudan remains extremely fragile and the Government there are at best dysfunctional, incompetent and corrupt, what other measures are the Government taking beyond humanitarian aid in order to address the situation, especially in other countries in east Africa? Will they consider seriously channelling the funds they are making available through civil society groups, especially faith groups, which tend to be more effective in that country in getting money on the ground?

Lord Goldsmith of Richmond Park: The most reverend Primate is right; he should perhaps not mince his words so much in describing the Government there. The UK is pursuing every diplomatic avenue we can to bring about an end to violence, establish humanitarian corridors, which are essential, and pave the way for meaningful talks. The Prime Minister, the Foreign Secretary and the Minister for Africa have engaged on a regular basis with their counterparts in  the region, including with partners in neighbouring countries—Kenya, Djibouti, South Sudan and Egypt—with the African Union and with the Intergovernmental Authority on Development. The Foreign Secretary has also engaged directly through various intermediaries with the two military leaders to press further for a cessation of hostilities, and we will continue to work with the international community in every way we can in order to push for a longer-term and more permanent end to the fighting and a return to talks on transitioning to civilian rule.
I apologise that I did not answer the most reverend Primate’s question about funnelling finance through civil society. He is absolutely right: we do not funnel money through Governments in the region; we rely increasingly on established NGOs on the ground, which are often far better placed to direct that money in a useful manner.

Lord Collins of Highbury: My Lords, the announcement today in New York is very welcome, but let us not forget that that pledge still represents a 13% cut on previous commitments to east Africa. The UN High Commissioner for Refugees, Filippo Grandi, said that resources are essential if we are to address this issue. Can the Minister tell us whether, in addition to financial support, we are able to provide technical support to those countries to ensure that proper assistance is given to those refugees? Can he also tell us how we are supporting the African Union’s efforts for peace and stability in that region?

Lord Goldsmith of Richmond Park: My Lords, we work very closely with the African Union, as I said, and also with neighbouring countries. I cannot add to the data that I have already provided in relation to the financial support we are providing, but I am not sure a 13% cut is correct—I am going to have to get back to the noble Lord if I am wrong about that. However, I think it is the case, based on the figures I have seen, and I will check with the Minister for Africa, that our contribution to the region is increasing, not decreasing, partly as a consequence of the humanitarian crisis that we are discussing today.

Lord Bellingham: My Lords, the Minister mentioned the AU, as indeed did the Opposition Front Bench spokesman. Surely the time has come for the AU to mobilise and energise those front-line states neighbouring Sudan, including—as the Opposition Front Bench spokesman mentioned—Egypt, but also Ethiopia, Chad and the Central African Republic. They have a crucial role not just in stabilising the region but in helping with this appalling refugee crisis unfolding on their borders.

Lord Goldsmith of Richmond Park: My noble friend is absolutely right that this is a growing crisis that has huge ramifications for neighbouring countries, as we have already seen, not least from having to cope with the huge movement of very large numbers of people who are often in desperate circumstances. The responsibility, therefore, to forge a lasting ceasefire rests not just on our shoulders but on those of the neighbouring countries as well. That is why the Foreign  Secretary, the Prime Minister and the Africa Minister have been engaging so frequently with those neighbouring countries.

Baroness Hussein-Ece: My Lords, we have heard mention of the other countries that are bearing the brunt, such as Chad, which has received around 60,000 refugees, adding to the 600,000 already there. Does the Minister accept what the charities are saying about the British Government simply not doing enough to facilitate family reunions with safe and legal routes from Sudan? Those from the UK who were eligible for evacuation were told that they would have to leave family members behind in Sudan. There was one example of a British national taking his two children, but he could not bring his pregnant wife because she was a Sudanese citizen. Is enough being done to facilitate children—especially those on their own, who have been abandoned—coming to this country where they have family members? Are we doing enough when other countries, such as Chad and other neighbouring countries, are suffering so dreadfully?

Lord Goldsmith of Richmond Park: I want to acknowledge the huge contribution being made by neighbouring countries. The noble Baroness mentioned Chad, which I think has taken 75,000 people, but Egypt has taken well over 100,000, South Sudan 71,000 and Ethiopia, the Central African Republic, Saudi Arabia and Libya have all taken significant numbers. If there are other specific examples of difficulties—she alluded to two—I will be keen to ensure that they are seen by the Home Office, which holds responsibility for this policy. To reiterate, our current refugee resettlement schemes allow us to support the most vulnerable refugees direct from regions of conflict and instability. Through those schemes, the UNHCR refers refugees whom it has assessed as in need of resettlement here. For some —indeed, for many—people, it is nevertheless in their best interest to stay close to the region or in a neighbouring country, where there are often similarities in culture, language and bureaucracy, and where they can be supported by international organisations, including the UN, which we support financially.

Viscount Stansgate: My Lords, the Minister mentioned that more than 1 million people have been displaced, and that is very serious. But can he tell the House why the Government brought to an end a year early the money allocated to Sudan through their own programme under the Conflict, Stability and Security Fund—the CSSF? In retrospect, does he not agree that this was a mistake? In light of the continued violent conflict, will the Government now restart funds for Sudan under the CSSF programme?

Lord Goldsmith of Richmond Park: My Lords, the CSSF is one tool, or fund, within government that has targeted support historically to Sudan and a whole range of other countries, but it is by no means the only fund available to government. As I mentioned earlier— I will not repeat the figures—we remain a very significant funder. The commitments that we have made in recent days and weeks have added to what is already a significant flow of support to the region.

Earl of Sandwich: Can the Minister confirm that as much as 17,000 metric tonnes were looted from WFP warehouses in Khartoum in the early stages of the crisis? The WFP itself is 15% funded for its work not just in Sudan but in South Sudan, including with those returning every day. How are the Government sustaining the World Food Programme at this critical time?

Lord Goldsmith of Richmond Park: I have to admit that I am not aware of the example that the noble Earl gave. I will have to put that to the Minister for Africa and provide a proper response in due course. On the issue of food provision generally, we have provided emergency food aid to an estimated 193,000 people as well as daily water and sanitation provision for 83,000 of the most vulnerable displaced people in South Sudan. This is a key area for us and the record is one that we should not be complacent about but can be proud of.

Baroness Sugg: My Lords, the refugees referred to by the most reverend Primate in his Question include women and girls who have suffered horrendous sexual and gender-based violence, including rape used as a weapon of war. What are the UK Government doing to help to ensure accountability for the actions of those responsible for these crimes?

Lord Goldsmith of Richmond Park: Our starting position is that a competent national or international court should determine whether crimes against humanity or genocide have been committed and who is responsible, and there have been numerous allegations, many of them backed up with impressive evidence, to suggest that very serious things have happened in the region. We remain a staunch advocate for justice. We support the role of the International Criminal Court in investigating war crimes, genocide and crimes against humanity. We work with a wide range of NGOs that are monitoring the situation closely, and we will continue to do so.

Energy Bills Discount Scheme Regulations 2023
 - Motions to Approve

Baroness Bloomfield of Hinton Waldrist: Moved by Baroness Bloomfield of Hinton Waldrist
That the Regulations laid before the House on 25 April be approved.
Relevant document: 38th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instruments). Considered in Grand Committee on 22 May.
Motions agreed.

Financial Services and Markets Bill
 - Order of Consideration Motion

Baroness Penn: Moved by Baroness Penn
That the amendments for the Report stage be marshalled and considered in the following order: Clause 1, Schedule 1, Clause 2, Schedule 2, Clauses 3 to 8, Schedule 3, Clauses 9 to 13, Schedule 4, Clauses 14 to 20, Schedule 5, Clause 21, Schedule 6, Clauses 22 to 48, Schedule 7, Clauses 49 to 51, Schedule 8, Clause 52, Schedule 9, Clause 53, Schedule 10, Clause 54, Schedule 11, Clause 55, Schedules 12 and 13, Clauses 56 to 69, Schedule 14, Clauses 70 to 79, Title.
Motion agreed.

Child Support Collection (Domestic Abuse) Bill
 - Order of Commitment

Lord Farmer: Moved by Lord Farmer
That the order of commitment be discharged.

Lord Farmer: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Motion agreed.

Offenders (Day of Release from Detention) Bill
 - Order of Commitment

Lord Bird: Moved by Lord Bird
That the order of commitment be discharged.

Lord Bird: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Motion agreed.

Illegal Migration Bill
 - Committee (1st Day)

Relevant documents: 34th Report from the Delegated Powers Committee, 16th Report from the Constitution Committee

  
Clause 1: Introduction

Amendment 1

Lord Hope of Craighead: Moved by Lord Hope of Craighead
1: Clause 1, page 1, line 7, at end insert— “(za) defines “illegal” and “unlawful” migration for the purpose of this Act;”Member’s explanatory statementThis amendment, and another to Clause 2 in the name of Lord Hope of Craighead, seek, in the interests of legal certainty, to provide a definition of what amounts to illegal migration at the outset of this Bill.

Lord Hope of Craighead: My Lords, I will speak to Amendments 1, 3 and 5. It is a privilege to open the Committee stage of this important Bill. Before I come to the amendments themselves, there is one thing I wish to point out. Nothing that I may say in support of my important but relatively minor amendments is intended to undermine, or detract in any way from, the much more important and fundamental points raised by the other amendments in this group, in particular Amendments 2 and 4. I seek to reassure those in whose names those amendments stand. I am seeking to draw the Government’s attention to points raised by the Constitution Committee, of which I am a member, in its examination of the Bill.
Nobody can predict what shape the Bill will be in once it reaches its Third Reading, so it is as well for your Lordships to put all the cards on the table in Committee. Some will be more important than others, but one has to grasp the opportunity to put them on the table now. That is all that lies behind these amendments, and I hope that will be understood.
Amendments 1 and 5 deal with the use of words and the need for a definition. In its Short Title, the Bill refers to what it calls illegal migration, and so do the Explanatory Notes in their overview of the Bill on page 3:
“The purpose of the Bill is to create a scheme whereby anyone arriving illegally in the United Kingdom … will be promptly removed to their home country or to a safe third country to have any asylum claim processed. The Bill will build on the Nationality and Borders Act 2022 … as part of a wider strategy to tackle illegal migration”.
It says that the purpose of the Bill, among other things, is to
“deter illegal entry into the UK”.
But when it comes to the Bill itself, the language changes. The purpose of the Bill, it says, is
“to prevent and deter unlawful migration”.
The question is: does this mean the same thing as illegal migration?
The committee noted on page 1 of its report that the Bill does not define “illegal” anywhere. On the other hand, the Secretary of State’s duty to remove a person is triggered when the four conditions in Clause 2 are met. This suggests that the right way to define the expression “unlawful” for the purposes of this Bill, and what “illegal” migration for this purpose means as well, is to refer to these four conditions, which is what my Amendment 5 does. The fact is that Bills come and  go, and expressions of this kind can be and are defined in different ways. Indeed, the words are interchangeable, as the language of the Explanatory Notes and the Bill itself has demonstrated.
The purpose of Amendment 5 is to make it clear that, whatever might be said in any other Bill or in any other circumstances, all one needs to know as to what makes a migration unlawful or illegal in the case of this Bill is what is in Clause 2. This is all about legal certainty and the accuracy and use of the words, which is an important constitutional principle. That is why the committee has made this important point.
Before I move Amendment 1, I will also speak to Amendment 3 in my name. It would require the Secretary of State to provide guidance as to how the provisions of the Bill are to be read and given effect. This follows another recommendation by the Constitution Committee in its report on the Bill, which was prompted by what we see in Clause 1(3) and (5). Clause 1(3) says that,
“so far as it is possible to do so … this Act must be read and given effect so as to achieve the purpose mentioned in subsection (1)”.
There is an echo here, which all lawyers will recognise, of the wording of the direction about interpretation given to the courts by Section 3 of the Human Rights Act 1998, but Clause 1(5) says that Section 3 of that Act
“does not apply in relation to provision made”
by the Bill. As the committee said, these are novel provisions and it is difficult to predict how they will be interpreted by the courts.
The Bill has been accompanied by a statement that the Minister is unable to say that the provisions of the Bill
“are compatible with the Convention rights”.
However, the Government’s ECHR memorandum on the Bill appears to be more confident that the clauses it identifies as engaging with convention rights, taken one by one,
“are capable of being applied compatibly”
with the relevant ECHR articles. As for Clause 1(5), all that the memorandum says about it is that the disapplication of Section 3 of the Human Rights Act
“does not affect the Government’s assessment of compatibility of the Bill with the Convention rights as set out”
in the memorandum. The Constitution Committee says that the Government’s position on this “requires further explanation”. I am sure that will be explored much further in the other amendments in this group.
The fact is that the potential impact of Clause 1(5), which is a major incursion into the rights guaranteed by the convention, has not been adequately addressed. It seems that the persons affected by the Bill, many of whom are extremely vulnerable to government action that undermines or deprives some of their convention rights, are being sent into a desperate kind of no man’s land where they cannot have any access to the courts of this country for a ruling on what their rights are. The Government are reserving to themselves the right to say what is and is not compatible, which until now has been the province of the courts. That is a serious change in our situation.
Recourse to the European Court in Strasbourg, which remains, is such a remote remedy in most cases that it would be no help to these disadvantaged people. The committee therefore recommends that the Bill should be amended to require the Government
“to provide for guidance, subject to parliamentary scrutiny”—
which is crucial to this point—
“on how the Bill is to be implemented compatibly with Convention rights”.
That is what Amendment 1 seeks to do. I beg to move.

Baroness Ludford: My Lords, I would like to speak to Amendment 2—unless the noble Baroness, Lady Meacher, wants to go before me.

Baroness Meacher: My Lords, with some trepidation, I want to comment on Amendments 1 and 5, tabled by my noble and learned friend Lord Hope. Under the refugee convention, anyone approved as a refugee has never been an illegal or unlawful immigrant, however they came to the UK. To define anyone as an illegal immigrant who may subsequently be deemed a refugee surely flies in the face of the refugee convention—or that is how I read it. I am sure that my noble and learned friend has a very good riposte to what I am saying, but if by any chance he does not feel he has, he may want not to press those two amendments.

Lord Hope of Craighead: My Lords, in fact, the noble Baroness makes my point. What I am really saying is that those who are affected by the Bill want to know what it means by “unlawful”. We may not agree with it, but the Bill has a formula which is to be used and we need to know what it is. That is the purpose of a definition. I absolutely understand what the noble Baroness says about the convention, but it is about the need to understand the Bill’s use of the word “unlawful”.

Baroness Meacher: Is it not our job to ensure that the Bill does not come up against the convention?

Baroness Ludford: My Lords, I would like to speak to Amendment 2, which is in my name and those of my noble friend Lord Paddick, the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Coaker. I will take just a little while. We had only six minutes at Second Reading and this group is key to the whole Bill. My remarks will follow on almost seamlessly, if I may say so, from those of the noble and learned Lord, Lord Hope.

Lord Hacking: Did the noble Baroness refer to Amendment 32 just now?

Baroness Ludford: No, I referred to Amendment 2, which is the second one in this group.
Before I move to human rights issues, I want to make a couple of preliminary points. First, it is incumbent on this Committee to subject this Bill to very detailed scrutiny. It proposes to strip human rights protections from a group of people excluded from the democratic  process. It is a core part of our justification, as an unelected revising second Chamber, that we do this kind of detailed scrutiny.
In the other place, there was quite a compressed timetable—that is an understatement. Second Reading there was expedited, only a few days after the Bill’s introduction. Instead of the usual detailed consideration and evidence-gathering in Committee, the Bill had only two days on the Floor of the House, during which its provisions were considered out of sequence. On Report, the Government published more than 100 amendments at late notice, dealing with both substantive and highly technical issues, many of major constitutional importance. Particularly in the case of this Bill, it behoves us to carry out intense scrutiny.
My second preliminary point was made in a briefing from the Law Society. It stressed the importance of the UK’s reputation for its commitment to the rule of law and international obligations, including human rights obligations, to our attractiveness as a place to do business. It says:
“Senior representatives of the UK’s biggest law firms have told us they are concerned about the damage non-compliance”
with our legal commitments
“could do to the UK’s economic competitiveness, by undermining the confidence of businesses looking to invest in the UK”.
I think we recently saw a reported drop in UK inward direct investment, and Germany has shot up the list. It is not just for us human rights nerds that international legal commitments are important. Global business places great importance on these issues too.
This is a perilous moment for human rights protections in Europe, as the war on Ukraine by Russia continues and Russia has been expelled from the Council of Europe. The UK’s reputation is strengthened by being not only a founding party to the European Convention on Human Rights but an active, leading member of the Council of Europe. It was therefore good news that the Prime Minister went to the recent Council of Europe summit of Heads of State and Government.
Now is precisely the moment for the UK to lead on the world stage in reinforcing basic human rights norms and international law, including the ECHR. Pushing this Bill through this Chamber when the Government cannot confirm that in their view, multiple provisions in it are compatible with the European Convention on Human Rights, threatens our reputation as a country that upholds international law.
As has been noted by the noble and learned Lord, Lord Hope, the Home Secretary has been unable to make a statement under Section 19(1)(a) of the Human Rights Act that the Bill is compatible with convention rights. This is an extremely unusual step, and it means there is a high risk that the Bill will violate rights under the ECHR. Then, we have a bit of snakes and ladders. We have the Section 19(1)(b) statement, but in a Home Office Oral Statement delivered in the Commons on 29 March—which the Minister repeated here—entitled “Illegal Migration Update”, the Minister for Immigration said:
“Of course, as we reform the asylum system, we will continue to honour our country-specific and global safe and legal commitments.” —[Official Report, Commons, 29/3/23; col. 1017.]
In his letter to us on 27 April, the Minister said:
“As the Minister made clear in the House of Commons, the Government takes our international treaty obligations incredibly seriously”.
We have the statement with the Bill, but when the Home Secretary introduced the Bill, she expressed confidence that it was compatible with international law, as the Minister’s statements have said. However, her justification for being unable to make a statement of compatibility with the convention was that the Government’s approach was “robust and novel”. We are getting considerably mixed messages: on the one hand, the Government cannot confirm that the Bill is compatible; on the other, there are statements from the Home Secretary that she is “confident” and certain that the Bill’s measures are compatible.
How she can have that stated confidence—when she had to make a Section 19(1)(b) statement that she cannot confirm that it is compatible—is a mystery. We have a juxtaposition of different measures. If the Government cannot confirm that the provisions are compatible with the ECHR, it threatens our reputation as a country that upholds international law. I am sorry that I have taken a bit of time on this amendment, but it seems crucial to the whole passage of the Bill through the House.
Finally, I turn specifically to Amendment 2. As the noble and learned Lord, Lord Hope, mentioned, it would remove Clause 1(5) of the Bill, which disapplies Section 3 of the Human Rights Act 1998. I remind noble colleagues that Section 3 places a duty on a judiciary to interpret, so far as it is possible to do so, all legislation
“in a way which is compatible with the … rights”
under the ECHR, which are incorporated into domestic law through the HRA. The effect of the provision in the Illegal Migration Bill is that judges will be unable to reconcile its provisions with our human rights obligations under the HRA and the ECHR. The only option available to the courts would be to issue a declaration of incompatibility under Section 4 of the HRA. However, that merely flags incompatibility to the Executive. The court cannot do anything about it; it just has to flag it, which puts the ball back to the Government to have responsibility to initiate measures to rectify the incompatibility.
The possible likely outcome of all this is that these cases will go to the Strasbourg court. Given that the UK court has already found that there is a violation, because it had to issue a declaration of incompatibility, it is likely that Strasbourg will find a violation, thereby putting the UK on a collision course with the European Court of Human Rights. It would be a serious breach of international law if the UK refused to comply with a binding judgment issued by the Strasbourg court.
All in all, I put it to the Committee that the Government have got themselves in quite a mess with the HRA and the ECHR. Removing the scope of Section 3 of the Human Rights Act suggests that the Government are in fact worried about the provisions of this Bill being incompatible with our international law obligations under the ECHR. Otherwise, what would there be to worry about? If the Home Secretary is “confident” et cetera, leave it to the courts to interpret the Bill’s compatibility with convention rights. If human rights  compliance is truly sought by this Government, why is it necessary to oust the duty to do nothing more than interpret the Bill in accordance with the Human Rights Act—if the Bill’s wording can provide for that?
Removing this provision, Clause 1(5), from the Bill, as Amendment 2 requests, would go some way to resolving anxieties about the impact of the ministerial statement under Section 19 of the HRA, whereas retaining the application of Section 3 would help to uphold the UK’s reputation as a jurisdiction which upholds the rule of law and respect for human rights. That is what I suggest should happen.
If I may—so that I do not have to get up again— I shall speak to Amendment 148 in the same group, in which my noble friend Lord Paddick joins me. Similarly with other amendments, including that from the noble and learned Lord, Lord Hope, it would require that the provisions of the Bill do not come into force until a month after the Secretary of State has issued a statement that in their view the provisions are compatible with the convention rights and so on.
I conclude by saying that all this goes to our international reputation for complying with human rights law and will, indeed, be helpful to our attraction for global business.

Baroness Chakrabarti: My Lords, I shall speak to Amendment 4 in this group, in my name and those of the noble Lords, Lord Paddick and Lord Kirkhope of Harrogate, and the noble and learned Lord, Lord Etherton. I have also added my name to Amendment 2 in the name of the noble Baroness, Lady Ludford, and I have some thoughts on Amendments 1, 3 and 5 in the name of the noble and learned Lord, Lord Hope of Craighead. Amendment 84, in the name of the noble Lord, Lord Alton of Liverpool, is partly duplicative of mine, but focuses specifically on international anti-trafficking provisions. In as far as it adds the EU anti-trafficking directive to the Council of Europe Convention on Action against Trafficking in Human Beings, I support it; however, I think we should settle on a single, holistic list of obligations that, crucially, includes the precious refugee convention and its principles of non-penalisation, non-discrimination and non-refoulement, which the Government seem so intent on violating by this obscenity of a Bill.
I turn briefly to the amendments in the name of the noble and learned Lord, Lord Hope. I thank him for his explanation earlier. Contrary to the explanatory statement for Amendment 1, I cannot quite agree that this does anything for so-called legal certainty. To the contrary, it seems a rather circular amendment, in defining “illegal migration” according to the conditions for removal in the Government’s own Clause 2. As the noble Baroness, Lady Meacher, suggested in her very pithy intervention, as a matter of international law, someone who qualifies for protection under the 1951 convention can never have been illegal.
Noble Lords who have come to the Committee sensibly armed with copies of the Bill might care to compare its Short and Long Titles. It has become quite fashionable in recent years for Short Titles to become creatures of political spin, but parliamentary counsel guard the Long Titles—so crucial for scope, for example  —rather more jealously. While the Short Title is the Illegal Migration Bill, and our graveyard humour alights on the adjective accurately describing the second noun, the Long Title refers instead to
“persons who have entered or arrived in breach of immigration control”.
As the refugee convention was effectively the world’s apology for the Holocaust and the insufficient and inconsistent protection given to those attempting to escape the Nazis, the convention always contemplated some genuine refugees having to escape persecution and enter places of safety by clandestine means and in breach of ordinary controls.
That is why
“in breach of immigration control”
is accurate and appropriate for the Long Title and “Illegal Migration” is not appropriate in the context of refugees, who, as a matter of declaratory law, will always have been refugees, even before they were given their status—hence the excellent point made by the noble Baroness, Lady Meacher.
The probing Amendment 3 from the noble and learned Lord, Lord Hope, helps to draw attention to contradictions in the Government’s public positions around the ECHR compatibility of the Bill. As the noble Baroness, Lady Ludford, pointed out, the Section 19(1)(b) statement on the tin indicates one thing—that no statement that the Bill is compatible can be made—but aspects of the ECHR memorandum of ingredients suggest another. However, the medicine prescribed by the noble and learned Lord and the noble Lord, Lord Anderson of Ipswich, is far too weak a remedy. When a Government are so intent on violating rights to protection from torture, slavery and death, allowing the same Government to issue guidance on interpreting their offending legislation is like handing burglars the keys to the house. Therefore, the noble Baroness, Lady Ludford, is right to seek to remove Clause 1(5), which seeks to disapply Section 3 of the Human Rights Act, which, as we have heard, requires that legislation be interpreted compatibly with the European convention so far as possible. That is why I added my name to her Amendment 2.
Amendment 4 in the names of the quartet of the noble Lords, Lord Paddick and Lord Kirkhope of Harrogate, the noble and learned Lord, Lord Etherton, and myself goes further. It does not just remove subsection (5); it replaces the whole of Clause 1 with the requirement that this legislation shall not require violation of any of the key international legal obligations that we fear would otherwise be violated by it, namely the 1950 European Convention on Human Rights, the 1951 UN refugee convention, the 1961 UN Convention on the Reduction of Statelessness, the 1989 UN Convention on the Rights of the Child and the 2005 Council of Europe Convention on Action against Trafficking in Human Beings. I am very proud to stand with noble Lords from four corners of the Committee whose experience includes high-level legal adjudication, law enforcement, and Home Office ministerial duty. What brings the senior judge, police officer, Conservative former Immigration Minister, and human rights lawyer together around the amendment is our desire that the United Kingdom remains committed to the international rule of law.
As we heard, last week, alongside other European leaders, the Prime Minister signed the Reykjavík declaration. It begins:
“We, Heads of State and Government, have gathered in Reykjavík on 16 and 17 May 2023 to stand united against Russia’s war of aggression against Ukraine and to give further priority and direction to the Council of Europe’s work … We reaffirm our deep and abiding commitment to the European Convention on Human Rights and the European Court of Human Rights (ECHR) as the ultimate guarantors of human rights across our continent, alongside our domestic democratic and judicial systems. We reaffirm our primary obligation under the Convention to secure to everyone within our jurisdiction the rights and freedoms defined in the Convention in accordance with the principle of subsidiarity, as well as our unconditional obligation to abide by the final judgments of the European Court of Human Rights in any case to which we are Parties”.
Mr Sunak said:
“We remain a proud European nation. And we must work together to defend the values we all hold so dear … Because we know what we can achieve together. Just look at this Council’s extraordinary legacy: protecting human rights, abolishing the death penalty in Europe, supporting media freedom and championing democracy across Central and Eastern Europe after the Cold War”.
Those fine words from the Prime Minister must not be contradicted by the Home Secretary’s illegal Bill.
Noble Lords will no doubt explore the many violations of our common and constitutional law tradition, as well as international law, via the anxious scrutiny of this Committee. At the very least, the Bill violates Articles 2, 3, 4 and 14 of the European convention in failing to protect victims of torture and trafficking and those at risk of death, and in allowing the Government to pick and choose which refugees from different countries it finds palatable from time to time. The Bill fails to protect stateless people and children in the context of its provisions on removal, detention, accommodation and age assessment. In the words of the UN High Commissioner for Refugees, it amounts to
“an asylum ban—extinguishing the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how genuine and compelling their claim may be”.
This must be one of the strongest condemnations of a democratic and rights-respecting nation ever uttered by the commissioner.
If Ministers seek to argue that the Bill does not violate these various linchpin treaties, many of which the United Kingdom played a leading role in negotiating, they should have no problem with the requirement that the Bill be read in that way by Ministers, officials and the courts. If, instead, Ministers wish to argue that it is time to renegotiate these obligations, fair enough. Let them try to do so with such reserves of soft power as they think we have left. In the meantime, in contrast with Russia and other pariah states, let them respect the law.

Lord Carlile of Berriew: My Lords, it is a pleasure to follow the noble Baroness. I support her Amendment 4 for the following reason. If I was a person in a country far from here who faced torture and very serious discrimination, possibly for his or her political views or opposition to the Government, or possibly for their sexual orientation which is an issue in quite a number of these cases, I might look up what the United Kingdom stands for in international law before I make my decision as to whether to seek  asylum in the United Kingdom or some other country. And what would I read? With a couple of clicks on the internet, I would read exactly what is set out, or aspired to, in Amendment 4 tabled by the noble Baroness. In my view, that is the principled position to take.
I also understand completely—I think—the views expressed by my noble and learned friend Lord Hope when, if I can be permitted to use a little bit of transatlantic language, he pointed out certain uncertainties about the Bill in the speech with which he opened the first debate.
I want to challenge the Minister to do something he has failed to do—I say this with respect, because he is known for his clarity in this House. I challenge him to return to the very first page of the whole Bill, where the statement under Section 19(1)(b) of the Human Rights Act is set out. The first sentence reads:
“I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights, but the Government nevertheless wishes … to proceed with the Bill”.
Does that mean, “I don’t know if the provisions of the Bill are compatible with the European Convention on Human Rights”? Does it mean, “I know that it is not compatible with the European Convention on Human Rights”? Or does it mean that some parts of it are compatible with the European Convention on Human Rights and others are not?
This is an extremely important Bill. I say to the Minister that he owes it to your Lordships to explain to us exactly the meaning of that statement. He is a good lawyer, so he should be able to do that. He should also list before this Committee—so that we can consider that list as we debate the rest of this part of the Bill—which clauses, in his view, fall within the European Convention on Human Rights, which do not and, in the spirit in which we debate things in your Lordships’ House, which ones he does not know about. It is only when we understand that statement properly that, in my view, we can have an educated debate about this part of the Bill.

Viscount Hailsham: My Lords, I have only a very brief intervention to make, but I want to speak to Amendment 4. I have two questions for the Minister which I think require serious clarification. First, do the Government accept that the Bill, if enacted, should be implemented in such a way as to comply with the convention rights that are itemised in Amendment 4? We are entitled to know what the thinking of the Government is. Do they intend that the Bill, if enacted, complies with convention rights?
The second question is contrariwise and actually is a suspicion. What is the purpose of the purpose test set out in Clause 1(2)? My suspicion is that the purpose test is designed to displace the convention rights if they come up against the Bill, if enacted. In other words, is the purpose test designed to override convention rights? I think this House is entitled to a very direct answer on both those questions.
For myself, let me make this absolutely plain to the Government. If Amendment 4 is put to a vote at any stage, I shall vote for it, because I believe that this  Government and this country should comply with convention rights. If the purpose test is designed to override convention rights, I shall vote against it if given the chance.

Lord Kirkhope of Harrogate: My Lords—

Baroness Jones of Moulsecoomb: My Lords—sorry, we have had quite a lot of Tories, have we not?

Lord Kirkhope of Harrogate: I am sorry, my Lords. I want to indicate that I think all of us in this Chamber wish, as the Government put it, to stop the boats. We all want to stop the suffering of people who are coming to this country in a particular manner at the moment. I am sure those of us proposing amendments all have that very much in our minds.
I support Amendment 4, which bears my name and others, and very much support what the noble Baroness, Lady Chakrabarti, said about it. I refer to my entry in the register of interests as a lawyer and a former Immigration Minister, and I have real concerns about any legislation that appears to threaten the important laws or agreements in place and signed in international forums by this country. I know that there are those who take a divided view between domestic law and international law. There are those who regard treaties, international agreements and conventions which bear the signature of the UK as being less important, and inconvenient when the Government and others promote domestic policies. However, if the Government wish to either disregard or, worse, discard, these obligations, I find that fundamentally unacceptable, and I hope that my noble friend, at least, as a fellow lawyer, would agree.
The Home Secretary has stated that there would be no problem in pursuing her new ideas. Apparently, she stated that she had consulted and secured the support of “the finest legal minds in the country”. As my noble friend knows, I asked at Second Reading whether he would list these minds, in case I wished to pursue some briefing or instruction, but I failed to get an answer to that, so he now has a further opportunity to let us know who the Home Secretary was referring to. The eminent lawyers I have consulted seem fairly confident, as was said by the noble Baroness, Lady Chakrabarti, that no asylum seeker can per se be described as illegal, and this worries me intensely.
At the Reykjavík summit last week, which was referred to earlier, a declaration was signed by all the participating states, including us, which stated great support for the international conventions. It said:
“We recall the increasing challenges of migration and the necessity to fight against trafficking and smuggling of migrants”.
I am sure we all agree with that.
“We commit to intensifying efforts to foster and improve international co-operation in this regard, while continuing to protect the victims and respect the human rights of migrants and refugees, as well as supporting frontline States, within the existing Council of Europe frameworks”.
I could not agree more—and, as I said, it was signed by the United Kingdom. It called for
“building a European legal community of shared values”.
That is something we should all agree with too.
It also referred to the Venice commission, which was referred to by my honourable friend the Member for Henley, John Howell, while this matter was before the other place. It is a legal body that is equipped to deal with interpretation of concerns over conventions, and the rule of law checklist is an inherent function of that body. That reference is important, in my opinion. As has been mentioned, our Prime Minister was very clear in his remarks at the end of that meeting. He was talking about how and why it was so important that our work with our friends on the continent went on to support the
“values of freedom, democracy and the rule of law”.
So I am confident—in fact, I am sure—that my noble friend will not only accept the amendment but will embrace the opportunity it provides to restate this country’s important position in the rule of law and our international relations. Those principles are so important.
I finish my remarks by pointing out that the amendment exemplifies our nation’s traditional unwavering dedication to upholding international law and being part of the development of international law. That is terribly important. By supporting the amendment, we reiterate our commitment to fairness, compassion and the respect for human rights, while remaining cognisant of the complexities and sensitivities surrounding the issue, of which we are all aware. By upholding these principles, we also strengthen our global standing, and that is surely something we ought to embrace ourselves. Whether or not the Minister embraces some of the things we are suggesting, I want to embrace that situation for our country.

Baroness Jones of Moulsecoomb: My Lords, I apologise to the noble Lord, Lord Kirkhope. It was an excess of enthusiasm in coming in after the noble Viscount, Lord Hailsham, and actually agreeing with him on something. I agree with the noble Lord, Lord Kirkhope, as well.
At first glance, this looks like an illegal Bill; it certainly looks as if it violates international law and suspends the Human Rights Act. Before I came into the Chamber today, I took some legal advice from a very fine legal mind—apparently a very sought-after Silk—and I was assured that the Bill is not unconstitutional or illegal. I would like to take another opinion on that because, quite honestly, I do not believe it. Even if it is legal—which I do not accept—it violates so many principles that you have to ask: how can we not be ashamed to let a Bill like this go through? It is all very well talking about legalities, but there are also such things as embarrassment and humiliation, particularly on the world stage. I think that is what the Bill offers, as other noble Lords have said.
What we are seeing, not just in this Bill but in other Bills, is the removal of our rights—all sorts of rights: parliamentary rights but also human rights in wider society. We have to be very careful about that. We, in many ways, are seen as the last bastion of humanity and respectability out there. People constantly say to me now, “We really thought the House of Lords was a complete waste of time, but we’ve changed our minds”. It is because we have been fighting this Government and trying to say to them that this is wrong. I think we have to say that this Bill is wrong.
The Government have tried to make us focus on other people. They have othered a lot of people: migrants, trade unions, even nurses, and of course protesters. They are trying to make us think we are providing solutions with a Bill like this, but we are not. We are not stopping the boats. We are not solving any problems with this Bill; we are creating more problems. I support all the amendments in this group. Amendment 3 is too cautious and I would like to see it strengthened, but Amendment 4 is very clear and strong.

Bishop of Chelmsford: My Lords, I support Amendments 4 and 84; I also have a great deal of sympathy for Amendment 148. I declare an interest as vice-chair of the independent Commission on the Integration of Refugees. I have been listening with great interest to the expert points raised by particularly the noble Baroness, Lady Chakrabarti, but also other noble Lords.
I am sure noble Lords will be aware that Clause 1, as it stands, is a narrative introduction that sets the scope and intent of the Bill as a whole. Crucially, it defines the purpose of the Bill as
“to prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes”.
I am sure we can all sympathise with the desire to make the migration system thoroughly orderly and predictable in nature, but I question whether this is plausible and whether what it entails is indeed desirable, particularly if it cannot guarantee compatibility with those international treaties, as we have heard. The sort of circumstances of catastrophe and persecution that drive refugees do not tend to allow for orderly or safe departures. I know this from my own personal experience but also from having spoken to many asylum seekers and refugees over the years.
The Government deserve credit for the design and delivery of the Homes for Ukraine scheme. My diocese has been delighted to welcome more than 50 Ukrainian guests into our scheme and to hear many incredible stories of welcome and community building. However, we should not forget the huge amount of effort and time that went into getting that scheme off the ground. It was not swift, and to be delivered at all it required an enormous redistribution of Civil Service and local authority capacity, to say nothing of the vast civil society contribution that needed to be harnessed. It is an incredibly labour-intensive model in its administration, neither sufficiently swift nor flexible to account for sudden or immediate crises, of which we are bound to see many more.
Refugees fleeing crisis, persecution and conflict do not have the time for the UK to develop a bespoke model—assuming that such a model would ever exist. The great majority of those in need who seek to come to the UK do not have a safe or regular route available to them. I deliberately say “regular” rather than “legal” because I want to underline what we have already heard said very clearly: according to the refugee convention, there is no such thing as an illegal route. This is a really important point that needs to be underlined and repeated. Anyone arriving at a country by any means has the  right to claim asylum. This point has been well made by the noble Baronesses, Lady Meacher and Lady Chakrabarti, and the noble Lord, Lord Kirkhope. The shorthand of “safe and legal”, which has become all too common, is misleading and leads to scaremongering. We should be much more careful about our use of language.
The Government’s answer seems to be that every refugee must stop in the first safe country. This sounds very easy in principle and is what the majority of the world’s refugees do, but safety is a relative concept. For example, for Christian converts in Iran facing terrible persecution, who have no safe or regular routes to this country, which neighbouring state would noble Lords recommend as a safe and secure place in which to rebuild their lives with the freedom to practise their religion, as is their human right?
Proximity is no guarantor of true safety. In the UK, there are many Iranian Christians who have settled and rebuilt their lives. There is an established community, and many have friends or family members here who can help and support them. In my work with the Commission on the Integration of Refugees, I have heard repeatedly of the importance of family, friendship, community and historical ties, and of activities and structures to help refugees integrate better. This is what safety means to people who have lost all those things in their home countries. They are not “asylum shopping”, to use the offensive and disparaging term used by the Immigration Minister. Rather, they are choosing to come as directly as they can to the place where they feel they will be safest.
This is why Amendments 4 and 84 are so important. They look to establish a guarantee to abide by the international treaties to which we as a nation have already committed, as we heard said so articulately by the noble Baroness, Lady Chakrabarti. These treaties exist not to frustrate orderly migration policies but to establish a baseline of protection and commitment that is shared across nations. They are designed for individuals for whom the normal, orderly means of migration are not possible but who urgently require humanitarian assistance. They create proper structure for people to depart and to claim status in a place where they will be safe.
These amendments are a commitment to the vulnerable and a commitment on the part of states to be held accountable for their actions towards the vulnerable. If the Government cannot commit to that accountability, I cannot accept that the stated purpose of Clause 1 is either appropriate or desirable.

Baroness Lister of Burtersett: My Lords, I speak in support of Amendment 4 and draw attention to my entry in the register, with regard to support from RAMP for this and later amendments.
It is vital that, in line with our international obligations, we uphold the human rights of men, women and children who seek asylum in the UK. It is worth remembering what Theresa May—no softy when it comes to immigration matters—said in the Commons:
“That matters because of the reputation of the UK on the world stage, and because the UK’s ability to play a role internationally is based on our reputation—not because we are British, but because of what we stand for and what we do”.—[Official Report, Commons, 13/3/23; col. 592.]
Related to this is a warning from the Council of Europe Commissioner for Human Rights in her letter to the Lord Speaker that the Bill, as summarised in Clause 1, would
“provide an incentive to other states, in Europe and beyond, to follow the UK’s lead in evading and abdicating its responsibilities to people in need of protection”.
Given that much of the Bill is justified with reference to incentives, one hopes that this warning might resonate with Ministers. If other countries follow suit, we could well find that we have more, not fewer, asylum seekers trying to cross our borders.
Of the conventions listed, I will focus just on those relating to refugees and children, although I also draw attention to the concerns raised by Redress, which warns that the Bill threatens to cause the UK to violate key provisions of the UN convention against torture. I will not repeat the highly damaging verdict of the UNHCR, other than to note, as did my noble friend, the unprecedented strength of its criticism, reflected in the stark warning that the Bill amounts to an “asylum ban” in contravention of the refugee convention. Every briefing that we have received, including from the EHRC and the Law Society, echoes these concerns about the refugee convention. Indeed, the UN special rapporteur on the human rights of migrants, and other UN rapporteurs, have urged the Government to halt the Bill’s passage so as to bring it
“in line with international human rights standards”.
However, according to the Home Secretary, such claims are “simply fatuous”. She put forward two arguments in the Commons to justify her position. The first is that while the
“convention obliges parties to provide protection to those seeking refuge. It does not require that this protection be in the UK”.
However, the UNHCR explains that, under the Bill, the Home Secretary
“will not be required to assess whether removal”
to a supposedly safe country
“would be safe or reasonable for a particular individual or whether they will be able to claim asylum there. Individuals would have very limited opportunities to present evidence of the risks they would face”.
Thus, it warns that the removal duty placed on the Home Secretary
“creates real and foreseeable risks of refoulement”.
This is echoed by the UN rapporteurs. The proposed responsibility-sharing arrangements lack the required safeguards to protect the rights of asylum seekers and refugees.
Secondly, the Home Secretary prayed in aid Article 31 of the convention which, she argued,
“is clear that individuals may be removed if they do not come ‘directly’ from the territory where their freedom is threatened. Denying those arriving illegally from France, or any other safe country”
is, she concluded,
“therefore, entirely consistent with the spirit and letter of the convention”.—[Official Report, Commons, 13/3/23; col. 580.]
However, the UNHCR is clear that it is not consistent. Its legal observations on the Bill are explicit:
“Mere transit in an intermediate country cannot be considered to interrupt ‘coming directly’”.
As the EHRC points out, because of geography, “direct” routes to the UK are rarely available. Exploiting our geographical position to abdicate responsibility for asylum seekers shames us as a country. I therefore repeat the question that I asked at Second Reading: can the Minister explain why we should accept the Government’s interpretation of the refugee convention over that of the body with supervisory responsibility for it? That body was recently described by another Lords Minister as “a key partner”.
The UNHCR also warns that
“The Bill is inconsistent with the UK's obligations under the UN Convention on the Rights of the Child … because of the many ways it threatens or undermines the safety and welfare of children”.
I will not go into detail here, because a number of amendments specific to children will follow, but it is worth noting now that, in the view of UNICEF, which is mandated by the UN General Assembly to uphold the UNCRC and promote the rights and well-being of every child, children should be removed from the scope of the Bill in order to uphold the Government’s
“duties to act in the best interests of the child”
as set out in the UNCRC. Similarly, the Children’s Commissioner, who has demonstrated a passionate concern about the Bill’s implications for children, has warned that it
“would place the UK in clear breach of its international law obligations under a range of children’s rights treaties”.
The equality impact assessment, which finally appeared on the morning of Second Reading, assures us that
“the Home Office will continue to comply”
with the duty under Section 55 of the Borders, Citizenship and Immigration Act 2009
“to have regard to the interests of children as a primary factor in immigration decisions affecting them”.
As UNICEF reminds us, this duty was enacted in order to implement the UNCRC “best interest” requirement. Yet, the equality impact assessment tries to wriggle out of the duty by arguing that:
“The duty does not mean that it is the only factor that must be considered”.
In effect, it is being treated as a secondary rather than a primary factor, an issue to which I will return in a later group. We still await the child rights impact assessment called for by the Children’s Commissioner as essential to ensure consistency with the best interest requirements. It was promised “in due course” in a Written Answer on 17 May, so where is it?
Relevant here too is the position of the devolved nations. The Northern Ireland Human Rights Commission has warned that the Bill could contravene the Good Friday/Belfast agreement and Windsor Framework in a number of ways. Has the Minister read its critique, and will the Government be publishing a response to it? The Welsh Civil Society Forum points out that Wales’s “child first, migrant second” approach, in line with its incorporation with the UNCRC, risks being undermined. As the Constitution Committee points out in its critical report on the Bill, while
“international relations are reserved matters … observing and implementing international obligations are devolved”.
What is the view of the devolved legislatures?
In conclusion, we must take note of what national and international human rights bodies are saying about this Bill. To echo a point made by other noble Lords, if the Government genuinely believe that the Bill meets the obligations in the conventions listed in the amendment, why not accept it now? Refusal to do so will only reinforce the belief of the UNHRC and others that this Bill marks the abrogation of the UK’s global responsibilities.

Baroness Butler-Sloss: I would happily support all the amendments, although I would prefer Amendment 4, which I think expresses it more accurately, perhaps, than the others. I only really want to make one point because so many points have been made with which I entirely agree and they are almost unanimous across the Committee, as perhaps the Committee is noticing. We heard from other speakers that the Prime Minister put his name to that convention or treaty earlier in Reykjavik in which he is supporting international conventions. The Minister in the other place spoke about caring about international conventions. The question I want to ask the Minister is: looking at this Bill, looking at how it has been pulled apart in Clause 1, does the Minister really feel able to say that the Government care at all about international obligations?

Lord Horam: My Lords, I want to comment on the speech made by the right reverend Prelate the Bishop of Chelmsford just now. She made a very important point which the Committee should take note of. She said that the amount of work that went into the programme to deal with people fleeing Ukraine was significant and she praised that. She understood from her experience the amount of effort that the Home Office made in that particular case.
I would like the Committee to understand that this Bill and all that surrounds it—as it is merely part of a package—is a serious attempt to answer a serious problem. It is not a problem which is faced just by the United Kingdom. I was a member of the European Affairs Committee several years ago when we were looking at the traffic coming across the Mediterranean from Libya to Italy. The European Union had and still has a programme called Operation Sophia designed to stop ships coming across the Mediterranean in that way and to deal with them when they come to Italy, Lampedusa or Sicily. Similarly, the European Union has a plan dealing with people coming from Turkey to Greece, and the Spanish Government have dealings with the Moroccan Government.
Earlier than that, the Australian Government had, I think, the first example of this problem of boats arriving with immigrants out of the blue in 2001. It was evident that people were coming across from Papua New Guinea to the northern shores of Queensland illegally, and the then Liberal Government of Australia put in hand a programme very similar to the one the Government are setting out here, which has been successful. It deterred people coming from Papua New Guinea, mainly people from Asia—India, Bangladesh and so forth. It worked, so there is precedent for success in this area, however sceptical the Committee may be  about this example. I acknowledge that the United Kingdom situation is geographically and legally very different from that of Australia—I fully accept all that —but it has been a success in one area of the world in dealing with this particularly difficult problem.
While I understand the general tenor of opinion in the Committee, which has been obvious so far, I do not want the Committee to think that this is other than a committed and understandable effort to resolve a difficult problem. Given what happened in the other Chamber, where there was a considerable majority for the Bill, I do not want the House of Lords to tie the hands of the Government unduly in dealing with this novel and difficult problem.

Lord Hannay of Chiswick: My Lords, first, I apologise for not having been able to participate in the Second Reading of the Bill. I support Amendment 4 very strongly because I believe it goes to the heart of the problems presented by the Bill.
The list of the international conventions which we should not infringe is pretty long and very important. I will start with the Convention on the Rights of the Child, which is perhaps sometimes a little overlooked in debates. The noble Baroness, Lady Lister, spent some very valuable time explaining why the Bill will contravene some of our obligations there. I had the honour of sitting beside the late Baroness Thatcher on the day she signed the Convention on the Rights of the Child— 28 September 1990. I can remember that as it is my birthday. I do not think she would have been terribly happy with legislation that cut across an international convention she had signed. I would like to hear from the Minister when he winds up how he answers the criticisms made by UNICEF, which is the body set up by all of us to adjudicate whether or not countries are living up to their obligations under the convention. I would like him to answer the question of the areas of the Bill which appear to be in contravention.
Then there is the refugee convention, which has been referred to on several occasions. The Minister has tried on previous occasions to say that there is nothing in the refugee convention being countered by the Bill, but I am afraid that, like many other statements he has made on the matter, it is a bit like the Red Queen in Alice. He is saying, “It is so because I say it is so”; that is not usually a convincing argument. I would like to hear from him which explicit provision of the convention allows us to extinguish the right of someone on our soil to claim asylum.
Of course, we have the right to reject that claim; if we do so, and if they cannot be sent back to their country of origin due to a risk of torture and death, we have to find an alternative place to send that person. I would like to hear what explicit provision in the refugee convention permits us to extinguish the right to claim asylum—not to have it, but to claim it.
A lot has been said about the European Convention on Human Rights. I will not weary the Committee with much more, except to say that the route down which the Government will go seems clear. They might say that they do not intend to get into a position of confrontation with the European court and so on, but they are either bluffing—and bluffing does not usually work terribly well—or they are setting off down a  slippery slope, which will lead us into direct confrontation with the European Convention on Human Rights and with the European Court of Human Rights in Strasbourg.
If we do that, we put at risk a substantial and extremely important chunk of the trade and co-operation agreement with the European Union. For that to fall away would be to have jumped out of the Northern Ireland protocol pan into the fire of losing a large chunk of justice and home affairs legislation, on which we worked together with the European Union.
Why do all these international complications matter? I would suggest that they matter a great deal because our Ministers—I applaud them for it—are standing at the Dispatch Box and going to international meetings, and they are saying that Britain stands for the rules-based international order. We are spending a lot of money and providing a lot of weapons—quite rightly so—to Ukraine to uphold the rules-based international order; but the list of obligations in Amendment 4 is a substantial part of the rules-based international order. If we contradict those obligations, what credibility will we have when we go around the world trying to uphold that rule? Not much, I would think. I would not fancy going to the countries of the global South and saying, “You really must take a stronger line on Ukraine”, to be told, “You say you are supporting the rules-based international order; well, here is a list of areas where you are breaking it”.
This is a serious matter that goes way beyond the responsibilities of the Home Office itself. Like others who have spoken in this debate, I do not wish for one minute to suggest that unlimited immigration is a good thing—that we do not want to stop the boats and so on. That is, frankly, not serious; it is just debating. I hope that, when the Minister replies to this debate, he will take on some of these international points and answer them in detail, with precision, and in a way that can convince us. Until that point in time, I remain a strong supporter of Amendment 4 and hope that it will stand in the Bill.

Baroness Fox of Buckley: My Lords, I apologise that I did not get to speak at Second Reading. I misread the Order Paper and thought that the day started with Questions. However, I listened to all the speeches and I certainly got a sense of the mood of the House; I note that, perhaps, that mood is at odds with the mood beyond the House. A previous point was made about unanimity; well, unanimity can be a cause for celebration but it can also be an echo chamber.
However, there are specific problems in the Bill that undoubtedly need to be tackled during scrutiny in the House of Lords. They need to be tackled if the Government are to fulfil their promise to the electorate to get to grips with controlling the borders of our country—controls that people feel are being flouted by an inability to stop the small boats. If this House can ensure that the Bill works, all to the good.
One aspect of that is that we are going to need some clarity about what and who will be affected by the Bill, and why. In that context, I am sympathetic to Amendment 1 in the name of the noble and learned Lord, Lord Hope of Craighead, because it is a valiant attempt to provide a definition of illegal and unlawful migration  and it could be helpful in improving the public debate on the issue, which often gets in a muddle. So often when the issue of channel crossings arises and people say that they are illegal crossings, they are scolded and told that they are not illegal and that they ought to know the law better. If there is a way of clarifying what the law is, all to the better, because that can be frustrating. Many people feel they are being gaslit on the question of the law. Amendment 1 may give us some clarity, but achieving such clarity probably cannot be done just via definitions.
There is certainly an impression outside this House— I am sure that people will put me right—that whole swathes of lawyers, along with NGOs and their legal advisers, provide those in the boats with legal get-out clauses and exemptions such that, frankly, it looks like an organised system to game the system, and that is coming not from the people in the boats but from the legal minds that are sympathetic to their cause.
I can completely understand why anyone from many of the countries that they are travelling from would want to live in the UK and to improve their circumstances, but by any reasonable definition, many or at least some of the people in the boats are not refugees in need of asylum, even if they are desperate to improve their standard of living to get away from countries that they do not want to live in. I understand that they can be encouraged to follow a script to find a way to stay in this country—we can empathise with the desire to do that—but we can also note that, frankly, that tests the bounds of legality, and in the process there is a serious danger of discrediting, for example, what we mean by modern slavery, which I think is being exploited, and what we mean by legitimate asylum status.
I wonder what the noble Lord, Lord Best, would make of the legal rows that happen within the legal and judicial community about definitions—what words mean. It is not as though if you put it down it is always clear. We keep hearing about eminent lawyers, fine minds and so on. Believe it or not, among those fine minds, there are eminent lawyers who disagree with each other. I listened to a lively row between two fine, eminent legal minds about the legal interpretation of Article 31 of the refugee convention. One read it to say that refugees must come directly from a place of danger —that is, not France—present themselves immediately, show good cause for their illegal entry and so on. Then the other person explained that coming directly, among some judges, would mean having come through other countries. Anyway, the row went on and I am not saying I understood it all, but it is not as though, every time, great legal minds give a sense of legal certainty. All this legal confusion can and does lead to cynicism that people are illegally breaching border controls, and that illegality is not being tackled. There is a danger that this can discredit the rule of law itself. I certainly agree with the shadow Immigration Minister, Stephen Kinnock, who has talked about the whole process being slowed down and clogged up by legal challenges and the problems that that causes.
In a way, my question to the noble and learned Lord, Lord Hope is: even if we establish a clear legal definition, how do we tackle the various loopholes and spurious claims that can create incentives for illegality which we cannot deny happen? Adults claiming  that they are children when they are adults in order to stay, destroying papers proving country of origin and so on—are we just to say that that never happens?
Such fudging of legality and illegality has made it inevitable that the debate has now moved on to lots of concerns about legal migration and numbers and so on. Somehow, the slowness of tackling questions of illegality has actually created a far more hostile environment for discussing migration full stop, whether economic or in terms of asylum. I really regret that.
A lot of this is based on what is seen as untrustworthy politicians refusing to keep their promises, so I wanted to look at that problem as potentially one that is created by Amendments 2 and 4. Amendment 2 aims to remove the subsection that disapplies Section 3 of the Human Rights Act for this Bill, but actually, that is one part of the Bill that I agree with. It at least tries to ensure that what Parliament intends to happen actually happens, and not allow the EHRC to be used as a barrier or excuse to that endeavour.
Amendment 4 comprises a list, in essence, of what is described as “key international obligations”. They have been read out, but I think it is important to acknowledge —that I acknowledge—the existence of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, the 1951 UN Convention relating to the Status of Refugees, the 1961 UN Convention on the Reduction of Statelessness, the 1989 UN Convention on the Rights of the Child and the 2005 Council of Europe Convention on Action against Trafficking in Human Beings. I want to state here and now that I am not arguing against all those conventions. There are some arguments that one might have, but that is not my point.
The reason why I have a problem is the way that this important list is potentially used or deployed to neuter this Bill. At Second Reading, concern was expressed that the Bill rips up long-standing commitments to international law, and we have heard that again today. My concern is how we avoid ripping up Parliament’s long-standing commitment to UK democracy if international treaties become a barrier to acting at the behest of the electorate, which is what Parliament is meant to do. What happens if those international treaties render Bills passed by the elected House—the House of Commons—unworkable?
It is, of course, true that the UK’s international reputation matters; but I also think that the reputation of Parliament matters at home to UK citizens. I do not think that we should forget the widespread, huge frustration when the public are told, “You cannot do that”.

Viscount Hailsham: Is the noble Baroness really suggesting that this country should depart from treaty obligations without much of a qualm?

Baroness Fox of Buckley: Having no qualms is something that I would never do, but I am also suggesting that having qualms, or using those qualms, to undermine what the British public would like to do is something that other people should have qualms  about. I think that people are tearing their hair out outside of here being told, “You cannot do that; you may have voted for that, but that cannot happen”. When international treaties are used in that instrumental way—which is the way I think they are being used—that is difficult.
May I ask noble Lords to put aside the specifics of this Bill just for one moment? I know that people are very emotional about this Bill, but what if, on another topic, the UK Government—perhaps another Government, not this one, whom more people in this House might be sympathetic to—brought in a different Bill? Just imagine if such a worthy Government, with a popular mandate, tried to bring in a radical, novel, innovative law; for example, enhancing workers’ rights or improving women’s reproductive rights—things that I would support. Just imagine if that Government tried to bring that Bill in and it got to the Lords, where they were told, “You cannot do that because there are all sorts of international treaty clauses that prohibit you doing it”. Imagine your frustration: would you break your promise to the electorate in that instance? I just want us to acknowledge that asking the Government to break a promise on the small boats—

Baroness Chakrabarti: Would the noble Baroness like to remind the Committee which limb of the constitution takes responsibility for negotiating and revising treaties on the world stage? Is it the judiciary? Are they the wicked people who run off, committing us to all these international obligations? Is it parliamentarians who go and negotiate these instruments that she is finding instrumental, or is it the Government who negotiate, renegotiate and, in some cases, even walk out of international obligations?

Baroness Fox of Buckley: My Lords, I do not think there are evil people involved in this and I have not gone down the moral/immoral route. I am concerned, genuinely, with ensuring that the electorate and citizens of this country do not feel that parliamentary discussion uses international treaties as an excuse to not do what they anticipate that Parliament was asked to do. For example, this could be about the abolition of the Vagrancy Act. Let us be honest; a lot of promises have been broken recently. I have heard excuses made for why we have not yet abolished that Act. I have heard excuses for why we can no longer get rid of tuition fees, and for why leasehold will not be abolished—

Lord Balfe: The noble Baroness will recall that we had a referendum to leave the European Union. Many of us opposed that, but it was the clear will of the democracy of this country that we left. Surely, on these international obligations that we are saying we are bound by, if the demos—the people of Britain—feel that they wish not to be bound by them, that is perfectly legitimate. We have to find a way to carry the wishes of the people into legislation and not use international agreements to say that the wishes of the people must be ignored.

Baroness Fox of Buckley: I am coming to an end. I understand the noble Lord’s point and I am endeavouring to explain that I think those international  agreements are being used in a particular political way on this issue. I have suggested that breaching promises to the British electorate—I was trying to give some examples across party lines, so that nobody would think I was having a go at any one party—is leading to cynicism and bitterness in the electorate. The low turnout at the local elections was an indication of the fact that many people feel politically homeless.
I do not necessarily support the Bill. I want it to be scrutinised by this House, but I felt that the amendments I was referring to were almost avoiding scrutiny by simply ring-fencing the whole nature of the Bill and saying, “You can’t do that because of international treaties”. That would seem to render us even trying to scrutinise the Bill a waste of time and it will lead to even more cynicism about the lack of democracy. That is my point and it has nothing, as it happens, to do with Brexit or the EU. Although the desire to control one’s borders and one’s laws was undoubtedly part of that, I was not making that point in this instance.

Lord Hodgson of Astley Abbotts: My Lords—

Lord Cashman: My Lords—

Lord Hodgson of Astley Abbotts: I think it is this side.

Lord Cashman: It is this side; an independent has just spoken.

Lord Hodgson of Astley Abbotts: Speaking independently, I think it is this side, but I will give way to the noble Lord.

Lord Cashman: My Lords, I thank the noble Lord for giving way and therefore I will be brief. I am not a lawyer, but I come to these matters from a very personal perspective.
I stand here as someone who, for most of my life, has faced discrimination and illegality. Why? Because the views of a majority were used against people like me enjoying the equal protection of the law and freedom from discrimination. I believe it is incumbent on anyone in public life to challenge public opinion, to lead public opinion and to have the courage to do the right thing for the long term, and never follow the short term.
I am grateful for the many briefings I have received on this from the Refugee Council, the Red Cross, the Law Society and many other eminent organisations. I think it is the first time that I have read from such reputable organisations that a Bill should be rejected on grounds of legality and constitutionality.
I particularly welcome Amendment 4 in this group because it states, quite rightly, our legal obligations. It neuters the power of Clause 1 to mandate that the rest of the Bill be in conformity with what I believe is an attempt to deny the right to seek asylum and refuge in this country.
I am lucky that I was born in the United Kingdom. I have to stand back and say: what if I had not been? What if I had been born in a country where I could not be myself, love someone of the same sex or have a  different political opinion or a different religion? What if I was that person? What would I do to value my family, my life or my liberty? I would seek refuge.
To leave your home is not an easy option. I say to the Government: do not represent it as a rush through Waitrose with a three-wheeled shopping trolley. It is about life and death. Yes, there are young men who have the courage to step into a leaky boat at the end of their journey and cross the English Channel. They cross the English Channel so that they can find a place where they might belong, where they might be able to use the language or learn the language or seek out others who have similar cultural and social values. What about them, coming to earn money to send back home to liberate their families from poverty and oppression? Are they not worthy of being given the right to a fair hearing and the equality of the law?
Finally, as I said, I was born in the United Kingdom, but I am told that my family left Spain as Jews in the 16th century and travelled across Europe for the centuries that followed in search of refuge—in search of asylum. Some ended up in Ireland, where they had enough of persecution because of their religion and converted to Roman Catholicism. That branch of my family came here, and I come from that branch of the family. When I was old enough to understand that my religion was being used against me to deny me my rights and to deprive me my place and my right to love, I became a born-again atheist.
The noble Baroness, Lady Fox, referred to the speeches she had heard. She might have heard me refer to a brilliant speech in a play by Shakespeare, which I am not going to give to your Lordships this afternoon.

Noble Lords: Oh, go on.

Lord Cashman: It is a brilliant speech, which reminds us that what was done hundreds of years ago is still being done: othering. “You bid that the strangers be removed”. These strangers have made their way from Calais to Dover to London.
“Imagine you are the stranger, with your children upon your back, your family at your side, your belongings at your feet. Imagine you are the stranger and bid that they be removed and show your mountainish inhumanity”.—[Official Report, 10/5/23; col 1849.]
That is what these amendments address and if, at some later stage, Amendment 4 is pressed, I will have absolutely no hesitation in supporting it.

Lord Hodgson of Astley Abbotts: My Lords, I am pleased to follow the personal and moving speech from the noble Lord, Lord Cashman. One always has to bear in mind the personal nature of many of the discussions and speeches we are hearing today.
I share one thing with the noble Lord: like him, I am not a lawyer. Therefore, to talk about the rule of law—which, in essence, is what this group of amendments is about—is to put one’s head into the legal lion’s mouth, but I am proposing to do that because I think that some important points need to be made from outside the courtroom. Before I get to the substance of my remarks, particularly on Amendment 4, I will set in context my strategic support for the Bill and the  direction of travel, which I explained at Second Reading, because it will colour the background to the remarks I will make now and the remarks I hope to make in future stages of the Bill.
We are meeting on a very important afternoon. In 2021, we gave the right to remain—not the right to enter—to 504,000 people. That is equivalent to a city the size of Cardiff. Tomorrow, at 8 am, the ONS will release the figures on the right to remain for 2022. Unless the press has got it completely wrong, we will have given 700,000 people the right to remain in this country in one year. That is equivalent to a city the size of Newcastle. There must be a serious question as to whether that rate of population growth is sustainable, particularly within the confines of an already pretty crowded and small island.
I am sorry that the right reverend Prelate the Bishop of Durham is not in his place. Although we had many confrontations on the borders Bill last year, one thing we could agree on—and I suspect that there will be general agreement in Committee—is that people who are here legally, and who have legal rights to come here, need to be welcomed and given all the advantages and rights that we enjoy. The creation of two classes of citizens would surely be fatal for our country and our society. So, when we allow people to come here permanently, we take on a considerable debt requirement for investment in various aspects that make our lives suitable and happy.
The right reverend Prelate and I would also agree, I think, that, when these rights are being given, responsibilities are simultaneously imposed. If you wish to take out of our society, you must put back in —as indeed we all must. But, if the Committee accepts that we cannot, with advantage, build a Cardiff one year, a Newcastle the next year and so on into the future, we have to find ways to restrict the inflow. By the way, the unofficial figures for the first four months of this year will show higher than 700,000 if it goes on at that rate. The 67.3 million people of our settled population—18% of whom come from minority groups —deserve no less. Therefore, as I listen to noble Lords explaining how the Bill should be removed, I think they need to think about how we tackle the question of a country which has taken on 1.2 million people— 2% of its population—in the last two years.

Archbishop of Canterbury: I entirely accept, and everyone who has spoken so far has agreed, that we have to control migration. I do not think there is any argument about that, but does the noble Lord accept that of that 700,000 last year, or whatever the number turns out to be exactly, the Bill will cover only 45,000? The Bill is not about overall immigration.

Lord Hodgson of Astley Abbotts: The most reverend Primate is exactly right: we have failed to start the conversation across the country as to what the number we can reasonably absorb is. Once we have had that conversation, the second stage of the conversation is: how does that number divide up between, as the most reverend Primate has just referred to, people who are coming here to fulfil jobs we cannot do and people who are coming here because they have money or ideas or are brilliant academics? That way, the people  of this country would have some understanding of what is in store for them. I certainly accept that 40,000 people—but it may be 80,000 people—is only a fraction, a small part, of the problem that we face.
I turn, without further delay, to the rule of law. I need to begin by stating that I am an enthusiastic supporter of the rule of law, a rule of law that interprets the views of Parliament and provides the framework under which our society can operate with confidence, our freedoms are protected and our property rights are respected. Indeed, at various times since I joined your Lordships’ House, we have had debates on the importance of the rule of law which I have been pleased to participate in. At this point, Members of your Lordships’ House who are of a judicial turn of mind will no doubt be pleased by what I have been saying. I am afraid that what I am about to say is going to be rather less acceptable.
As I have explained, I am not a lawyer, but I think the rule of law is too important to be left entirely to lawyers to speak about and interpret; there are wider societal consequences. I do not wish to get involved in legal niceties and drafting. I have heard the Government’s view, expressed by my noble friend the Minister, that the UK will be in compliance. I have heard endless briefings about how the UK will not be in compliance. Let me explain from a non-lawyer’s point of view what I think the man on the Clapham omnibus thinks, which is that the rule of law is not a stand-alone, immutable entity. To be effective and accepted, it needs to be well integrated into the civil society which it seeks to protect. Specifically, in my view, to carry public confidence the rule of law needs to meet four tests: it needs to be relevant; it needs to be open to scrutiny; it needs to be applied in accordance with the original purpose of the law; and it needs the informed consent of the British people. I shall deal briefly with those points.
The first is relevance. Of the list in Amendment 4 of five conventions, two are 70 years old, one is 60 years old, one is 30 years old and only one was signed this century. The noble Baroness, Lady Chakrabarti, proudly read them out. In 1950, in the aftermath of the appalling events of the Second World War, the challenge of refugees, in terms of numbers, scale and distance, bears no relation to the situation we face today. Of course, I accept that there are areas of read-across from 1950 to today, but to see a direct comparison in every aspect stretches public credibility.
The second is openness and scrutiny. Again, as a non-lawyer, I expect there to be open hearings, with pleadings by both sides, followed by a detailed reason for reaching a particular decision by an identified judge or judges. I am not clear that this has invariably been the situation in some of the key aspects that form the background to the Bill.
The third is applicability. I was an enthusiastic supporter of the Modern Slavery Act—which is not on the list in Amendment 4—but now I see it being misused as a means to frustrate the proper operation of our immigration system and so devalue and undermine the original purpose of the Act. I find it hard to believe that the increase in case load from an anticipated 3,500 cases per annum to the current 17,000 cases last year can all be based on genuine circumstances.
Fourthly and finally is informed consent. I return to a point I covered a bit earlier: successive Governments have never been courageous or honest enough to explain candidly to the British people the implications of these conventions. It has been easier to present the country with a series of faits accomplis and then wonder why there is a degree of public cynicism and toxicity about the process.
I hope that my noble friend the Minister will reject amendments that place excessive weight on the narrow interpretation of the rule of law. I respectfully suggest that Members of the Committee who have amendments in this group reflect on how the outcome of their decisions and discussions may serve across the country to undermine the credibility of and public confidence in a concept—the rule of law—which we can all agree lies at the heart of our society.

Lord Kerr of Kinlochard: My Lords, I largely made at Second Reading all the points I would have wished to make in this debate, and they were admirably made earlier by the noble Lord, Lord Hannay. I look forward to the Minister’s response to the challenge from the noble Lord, Lord Carlile of Berriew, to construe for us the meaning of the Section 19(1)(b) statement. The Minister made a sporting shot at it at Second Reading when he said:
“I think it is fair to say that there has been a misunderstanding of the effect of such a statement. We have designed a scheme that is novel and ambitious”.
One can say that again. He continued:
“as a result, we have made a Section 19(1)(b) statement under that Act. This simply makes it clear that we cannot say definitively that we will win a challenge in Strasbourg. However, we are confident that Strasbourg will respect the will of Parliament and our domestic court processes. We make no apologies for taking this approach. This is what the situation demands and what the British public expect”.—[Official Report, 10/5/23; col. 1921.]
I find that a slightly sinister statement. It seems to carry the ring of, “And the court had better find for us, or else”—and we all know what the “or else” is that is talked about in some quarters. To be fair to the Minister, he did not try to argue that, in a dualist state like us, breaching international law is a legitimate action, but some he cited in his speech are so arguing.
I say to the noble Lord, Lord Hodgson of Astley Abbotts, that if one thinks that these conventions are a bit old and wants to change them, the way to go about that is to call for an international conference and put down proposals for amendments to the conventions. The refugee situation and the problems of asylum are not less now than they were when the conventions were created, so the need to defend and perhaps develop them—there is a case for trying to develop them—is more important now than it was even when they were first set up.
I strongly support Amendment 4. I also support Amendment 2.

Lord Hacking: My Lords, I support Amendment 4 for all the reasons that almost every Member of the Committee has expressed in the debate, but I will not repeat any of those arguments. I am a little disappointed that we have not heard from the noble Lords, Lord Sandhurst and Lord Wolfson, both  of whom are sitting on the Government Benches. As a fellow lawyer, I would be interested to know their position on Amendment 4. I think that I saw the noble Lord, Lord Sandhurst, attempt to stand up, so I may get an answer to that question.
I am going to read to your Lordships a short quotation from the brief I have just received from Justice. I should tell your Lordships that I am on the council of Justice and have been a member for many years. It reads as follows:
“This is a perilous moment for human rights protections in continental Europe, as the war in Ukraine continues and Russia is expelled from the Council of Europe (the leading human rights organisation on the continent). The UK’s reputation is strengthened not only by being a party to the European Convention on Human Rights but an active leading member of the Council of Europe. Now is the moment for the UK to take the lead”.

Lord Desai: My Lords, I am not a lawyer; I am an economist. When the most reverend Primate raised this question on 9 December last year, I spoke on this matter. It is not that there is any problem with Amendment 4; I accept it entirely. A sense of this issue is in Amendment 1: the Bill should not have been called an illegal immigrants Bill. It should have been called an economic migrants Bill, because the whole idea, as mentioned by the noble Lord, Lord Horam, and the noble Baroness, Lady Fox, is that we cannot distinguish between economic migrants and genuine refugees. In trying to make that distinction when somebody arrives on our shores, having paid some smugglers, we have to undertake a lot of expense, and it takes a lot of time before we can decide that so-and-so is not a refugee, because not everybody who arrives is a genuine refugee. It would help if we could separately define economic migrants and refugees.
Being an economist, I think unlimited migration is good. Let me put it this way: I do not want to exclude economic migrants, because I think they are very useful people. They have talents and are willing to risk smugglers, small boats and their lives to arrive here, so they genuinely want to come here, work hard and make a fortune—that is very good. We need people like that.
For the purposes of the law and popular sentiment, it would be helpful if we started with a distinction between economic migrants and genuine refugees. I can see why it may be a very difficult thing to do, but if you could make the distinction then we could live with Amendment 4 very happily, and in Amendment 1 we could define precisely how our courts can quickly define economic migrants. Then we should charge them money to come here—I do not see any problem with that. We have visas, and green or red cards—whatever it is—and if you are willing to pay the smuggler, why not pay us? Rather than lose money, we should have our own boat services across the channel and say, “Please come, get into our boats and pay us the money you were going to pay the smugglers”. We are losing money and not solving the problem. I know this is shocking, but these things happen.
Let us decide who is an economic migrant and who is a refugee. If we can make that distinction logically and clearly, a lot of our problems will be solved.

Lord Sahota: My Lords, I will be very brief in speaking to the amendments in the names of my noble friend Lady Chakrabarti, the noble Lord, Lord Paddick, and the noble Baroness, Lady Ludford.
As the son of an immigrant, it always makes me uneasy when that word is spoken in vain. I am the son of an immigrant who was a member of the Sikh community which came to the UK in the 1950s, 1960s and 1970s and helped to build this country by working their guts out in the foundries of the West Midlands. Most of the foundry workers were Sikhs.
The Sikh population in the UK is now about 550,000 people. It is one of the most successful communities in the UK, with the lowest number of benefit claimants, the lowest unemployment rate and high rates of home ownership. Only 4% of the Sikh community lives in social rented housing, compared with 18% of other groups. It has the highest proportion of people in high-skill occupations at 39%, compared with 30% among other groups. Only 2% of the Sikh elderly are in care homes compared with a much higher number in other communities. A recent BBC study found that Sikhs are the most generous group when it comes to giving to charities. Over 60,000 meals—langar—are served every week on the streets of the UK by Sikhs. And yet—this is my first point—in a recent faith report for the Government by Colin Bloom, the impression given was that Sikhs are terrorists and extremists. I do not accept that characterisation of the Sikh community.
As for the Bill, I wish the Prime Minister had shredded it along with the other European papers. Whichever way you look at it, the Bill stinks to high heaven. It does not speak to our country’s traditional moral values, our international obligations on human rights, the UN convention on refugees, the European convention against human trafficking, other international treaties and so on and so forth. All these have been mentioned by other noble Lords. There is not a decent principle in the Bill that does not break human rights. I fully agree with these amendments.
We shredded our position and power in the world by pulling out of the European Union. Now, we are shredding our moral obligation in the world with this Bill—and what for? For a few votes in so-called “red wall” areas. Our Prime Minister and Home Secretary should think again before pursuing the Bill. As the son and daughter of immigrants, they should know how much immigrants have given to this country. I support these amendments.

Baroness Hamwee: My Lords, I am glad that the noble Lord, Lord Kerr, brought his copy of Hansard from Second Reading with him. My recollection of the Minister’s explanation regarding Section 19(1)(b) was that the matter had not been tested by the courts. That sticks in my mind because I thought it was curious, since the Government are rather critical of people running off to the courts for interpretations of the law.
I will say quickly, because I want to put it on the record, that I subscribe to the view that no asylum seeker can be illegal and to the comments about international law which have been made. I am afraid that I am going to retreat from the big picture and Second Reading to Amendment 1—possibly unconventionally.  I am grateful to the noble and learned Lord for tabling it, because it made me start thinking about the definitions of a lot of other terms used in Clause 1. The term he has singled out—I agree with him that it needs clarity—raises a lot of issues. There is a sort of endless loop of argument about compliance by the individual and compliance by the Government in their assessment of what they are doing.
In my mind, that is not the only phrase in Clause 1(1) that needs to be clearer. The same sentence uses the wording,
“and in particular migration by unsafe and illegal routes”.
That raises a lot of issues, does it not? Unsafe, of course, is a matter of judgment. As for illegal routes, in legislative terms, how does a route become illegal? What does “and in particular” signify in this context? Does the reference to unsafe and illegal routes exclude other routes? I really do not know. It is good prose, but not in this context.
Another phrase which bothers me at a technical and, I have to say, a political and a practical level is
“in breach of immigration control”.
Superficially, one understands what that means, but I do not know and was unable to find whether this is a technical phrase and so legally clear within domestic law. Immigration control is breached by a contravention of legislation, I would think, at a given time. That is clear enough. However, in the area we are discussing, the Immigration Rules—which we know are constantly changing and which come from Ministers and do not touch the sides for parliamentary scrutiny—are part of immigration control. So, I would be interested to know what that means in this context. It seems to me that one could portray this as delegation to Ministers by another mechanism. It is not clear—this is the political point, I suppose—so it is not a deterrent. I think it is inappropriate and gives more power to the Executive, which the Constitution Committee reports are given
“an unusual degree of power”
by the Bill.
I have added my name to Amendment 84. The noble Lord, Lord Alton, is not in his place; I did not expect to find that the debate on this would come today, and possibly neither did he. I am grateful to the right reverend Prelate for highlighting compliance with the anti-trafficking conventions. I agree with the noble Baroness, Lady Chakrabarti, that we need to come together with a single list that we can gather around.
I do not want to pre-empt debates on the substantive issues regarding trafficking and slavery—I say that without intending to suggest that the conventions and directives are not significant; they are—but will simply say that I expect the term “world-leading” to be used quite a lot with reference to the Modern Slavery Act when we get to that part of the Bill. The international nature of trafficking means that the UK has to consider it internationally and comply with conventions and directives—which brings us directly back to the point that many other noble Lords have made.

Lord Sandhurst: My Lords, I will speak to Amendments 2, 4, 84 and 148. I shall not speak to Amendments 1, 3 and 5. As for those later amendments, I will wait to hear what the Minister has to say about their meaning and effect on the Bill.
I turn to Amendment 2. Let me begin by way of introduction by explaining what I understand to be the effect of Clause 1(5) of the Bill, which will disapply Section 3 of the Human Rights Act 1998. Importantly, it does not mean that the convention ceases to apply to matters covered by the Bill or to acts by Ministers and officials; they will still be covered by it. Section 3 provides that
“primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”.
This provides judges with the power to interpret legislation, so far as it is possible, so it is in accordance with convention rights. It can result, and has in the past resulted, in a strained interpretation unintended by Parliament. Lord Steyn, in a famous passage in the House of Lords Appellate Committee, as it then was, said that it could be an unreasonable interpretation. I quote:
“Parliament specifically rejected the legislative model of requiring a reasonable interpretation”.
So it is an unusual rule of interpretation which arrives only in this context. It goes beyond the ordinary rules of interpretation applied in our courts in this country. That is very important. The Section 3 rule is not conditional on ambiguity in the legislation which is being interpreted by the courts.
It is important also to understand that Section 3 of the HRA is not necessary for compliance with the United Kingdom’s obligations under the convention. Without Section 3, the convention will still be incorporated into our domestic law. The HRA will still function, but the disapplication of Section 3 will prevent the courts from applying strained and unreasonable interpretations to the Bill and regulations made under it.
Importantly, the Bill does not touch or affect Section 4 of the Human Rights Act, so the courts retain their power under that section to declare a provision incompatible with the convention. Regulations can still be quashed. It will then be for Parliament to decide whether to act to amend the Act or to introduce new regulations, and that is how it should be.
Moving on, I remind the Committee of the words of Lord Scott of Foscote, speaking in what was then the Appellate Committee of the House of Lords, in 2009 —so not so long ago. He said:
“It is, of course, open to Parliament to enact legislation that is incompatible with one or more of the Convention rights. The ability to do so is inherent in the constitutional role of a sovereign Parliament”.
That was the highest court in the land in 2009. I am citing that.
I do not accept that the Bill is incompatible with the European convention rights or, necessarily, with other treaty obligations. I do not recommend us breaching our treaty obligations, but there is nothing in the Bill to prevent the courts of this country determining that a provision is incompatible with the convention. What happens then is for Parliament, and I suggest that is as it should be.
As for Amendment 4, in particular, if we breach treaty obligations, it will be for Parliament to address that. That is how we have always done it in this country. It is not for the domestic courts to interfere;  that is not the way we do things and we should not start introducing provisions to go down that route. It would lead to all sorts of problems, which there is not time to debate here today.
To conclude, I simply remind the Committee of the speech just now from my noble friend Lord Hodgson. He explained the growth in numbers. If we do nothing, it may be only 50,000, not the 500,000 or 700,000 this year, but that is the size of a decent-sized town. We simply cannot go on allowing that number to come in without any discouragement to those who want to follow behind. We all know, if we are honest with ourselves, that in the last few years, the numbers coming in seeking asylum, claiming that they are genuine refugees, have rocketed, and I am afraid that that is likely to become a larger number, not smaller, if we do not adopt the measures in the Bill. It contains a carefully interlinked package of provisions—

Lord Hacking: If the noble Lord looked at the national statistics on immigration for 2022, he would see that the figure is about 47,500 immigrants coming in by boat, but of those, there was a large portion of Albanians, and none of them were permitted to stay; they were shipped back to Albania.

Lord Sandhurst: That may be so, but the numbers are on a rising plane, and it is not simply Albanians now, they are coming from elsewhere. All I say is this. This is a carefully interlinked package of provisions. It may not be attractive or how we have done things in the past, but we face very different circumstances, and I suggest we should not seek to unpick its structure.

Baroness Ludford: I just ask the noble Lord about his point on Section 3 of the HRA, which he regards as disadvantageous. He talked about courts having to make a strained interpretation. I wonder whether he would give me some idea of how many cases there have been where the courts have had to strain to make this interpretation. Presumably, if they felt they had to do that, they would have had to resort to Section 4, declaring incompatibility. The review by Sir Peter Gross did not have a major problem with Section 3—I think there was a little tweak that has escaped my memory for the moment. It was broadly satisfied with the operation of Section 3, so I wonder why it is so difficult. With Section 4 and declarations of incompatibility, there is the disadvantage of having to make remedial orders—and there is not really capacity in the Commons to do that—and/or end up in the Strasbourg court. It seems to me much better to give some leeway to the courts to interpret legislation compatibly with the convention.

Lord Sandhurst: , I looked at Sir Peter Gross’s report yesterday and the night before to remind myself of what it said. Two points are important. One is that it was not unanimous on that point, unlike on everything else. We are not told where the disagreement was, but at least one member did not agree that nothing should be done. Secondly, it lamented the fact that there had been no statistics kept of the cases in which the court has gone down the route of Section 3, so we do not actually know when there has been what might be called a strained interpretation or when it has been a  perfectly natural interpretation. You can read it if you look at individual judgments. The one in which Lord Steyn spoke is the case of Ghaidan—I cannot remember the other name in the case—

Baroness Chakrabarti: Godin-Mendoza.

Lord Sandhurst: I am obliged. So there we are.

Lord Etherton: I have a very short point to make. I was delighted to hear the noble Lord, Lord Hodgson of Astley Abbotts, say that he was a great fan of the rule of law, but he, like the noble Baroness, Lady Fox, seems to think that it is something that can be moulded in accordance with political desire in Parliament. We should be quite clear about this, and the point is not a difficult one.
The rule of law is made up of various ingredients. One of those ingredients is compliance with international obligations. If you do not like the obligations and wish to comply with the rule of law, you either secede from the convention or international obligation or you change it. So long as it is there, you have to comply with it if you want to say that you are a country that observes the rule of law. We are a leading world democracy. If we do not abide by the rule of law, we place ourselves in the company of numerous rogue nations. This country deserves better than that.

Lord Griffiths of Burry Port: I feel a little intimidated to follow such an intervention. I am not a lawyer either, but I am a member, as I have said repeatedly in the past, of the delegation from this Parliament to the Council of Europe; and I can attest, from conversations I have had in its migration committee, plenary sessions and other meetings in Strasbourg and other parts of Europe, that there are a number of countries in Europe at the moment that are looking to us to uphold standards that will give them the courage to maintain their current position with regard to these conventions. It is a very perilous moment. Our role in Europe is key to keeping quite a lot of others on board, and I want to emphasise that.
I feel it almost impossible for me to want to give even a shred of support to a Bill that, as has been quoted, has as its preface a statement by the Minister that he cannot give any guarantee, et cetera. I find myself at a loss to be looking at a piece of legislation—a law that will go on to our statute books—that begins this process with this degree of ambiguity written into it. Can lawyers not give the rest of us a starting point more certain than that?
Finally, let me say at this point that, long before I got involved in European matters, I had a lot to do with migration from Haiti to the United States, which is not a signatory to the convention. The methods open to countries that are not signatories to the convention are not pleasant at all, and I simply would not want the United Kingdom to have the opportunities to behave in that way.

Baroness Lawlor: My Lords, I oppose Amendments 2, 4 and 148 in this group because they would subvert and obstruct Clause 1, which sets out the purposes of the Bill and how they are to be advanced.  I also oppose Amendment 3, because it would do so in a more subtle way, in requiring the Secretary of State to give guidance to Parliament on
“how the provisions … are to be read and given effect in a way that is compatible with the Convention Rights within the meaning of the Human Rights Act”,
and it includes a new obstacle that this
“does not have effect until approved by each House of Parliament”.
In this Bill, the Government are proposing to tackle unlawful migration—people coming into this country via unsafe and unlawful routes. The Government have a duty to enforce the laws of this country. They also have a duty to ensure the security of this country, including the security of its borders. International rules require asylum seekers to seek refuge in the first safe country in which they are.

Baroness Jones of Moulsecoomb: No, they do not. That is not true.

Baroness Lawlor: It is a long-established tradition.
The Government have proposed a scheme to remove those who did not, in this case, seek refuge in France and those who do not comply with this country’s immigration controls, as has been said. The Bill’s purpose is to deter and prevent unlawful migration. To advance that purpose, it is disapplying Section 3 of the Human Rights Act 1998. That is supposed to have the effect of making the laws clear. To this end, the disapplication matters.
I therefore oppose these amendments because they seek to subvert the aims or obstruct the purposes and methods proposed by this measure. They would remove the clarity on how the Bill is to be interpreted. They would obstruct the duty on our Government to ensure the security of our country and uphold the law. They would also mean that the democratic will of the people of this country, which is that our borders are controlled, is frustrated in the case of this sort of migration. I urge the Minister to reject these amendments.

Lord Patten of Barnes: I apologise for not taking part in the Second Reading debate on this Bill, but I have made amends by sitting through the entire debate this afternoon. I am sure that, when I reflect on the last few hours, I will realise how much I learned. There are two points I would like to make.
First, I am surprised that, despite the intervention of the right reverend Prelate—and despite, I am sure, his prayers as well—some Members of the House continue to conflate the issue of what was once disgracefully called by a Minister the invasion across the English Channel with the general issue of immigration. We can deal with the issue of immigration—and there is nothing wrong with that at all—best of all by having a serious labour market policy. That is the only way we will deal with immigration that does not set one party against another in a sort of auction of prejudice. I hope we will stop making it more difficult to discuss this Bill by talking about it as though it were a key to deal with the issue of immigration.
Secondly, I was surprised to find a spokesman for the People’s Republic of China. Why did the Chinese say they were perfectly at liberty to break the joint  declaration? They said it was a historic agreement; it was out of time; it was like a packet of peanuts that had passed its sell-by date. So, I am never going to believe that, simply because we signed something 10, 20, 40 or 50 years ago, it does not have any relevance today. But I am looking forward to hearing from the Minister whether or not he thinks this Bill is in line with international obligations, and I am looking forward, I suppose, to the contribution from the Chinese ambassador in the next debate.

Lord Wolfson of Tredegar: My Lords, like my noble friend Lord Patten, I have sat through all of this debate. I rise because my name—or, at least, a name close to mine—was mentioned by the noble Lord, Lord Hacking, at one point. The reason I rise with a little diffidence is that I have to catch a flight later this evening. I anticipate that I will be able to stay to the end of this debate and still make the plane, but if that turns out not to be right, I hope noble Lords will forgive me and not think that I mean any discourtesy to this Committee or those sitting in it today. I hope everybody will appreciate that is the last thing I would want.
Unlike other speakers, I cannot disavow being a lawyer. For better or worse, I am a lawyer. Therefore, let me make two short points at the outset. First, international law obligations are important. We ought to abide by them, as the noble and learned Lord, Lord Etherton, said. I would expect Parliament not to legislate contrary to a treaty obligation unless there were absolutely compelling reasons to do so and, in those circumstances, to make that very clear. Otherwise, we should always be legislating consistently with our international law obligations.
Secondly, as I made clear from the Front Bench on a number of occasions, I support our membership of the European Convention on Human Rights. I do not always agree with the decisions of the court—I do not always agree with the decisions of our domestic courts either—but that is a separate matter. I support us being in the convention.
I will not refer to all these amendments. I start with Amendments 3 and 148, which go together. Essentially, they refer to the statement that the Secretary of State must set out as to whether the Bill is compatible with the convention rights. Section 19(1)(a) and Section 19(1)(b) were put into the Human Rights Act as a political point. The noble and learned Lord, Lord Irvine of Lairg, made this absolutely clear when the Bill was going through this House. It was to keep people’s minds focused on whether the Government could say at that time that the Bill was compliant. It was never intended to be a legal bar. There is precedent in this House. The Communications Bill is a precedent for the Government being unable to state that the Bill was compatible with convention rights. When they were challenged, the challenges failed.
One cannot draw a line between being unable to make a Section 19(1)(a) statement and the Bill being in breach of convention rights. Section 19(1)(b) is very carefully drafted, and I listened carefully to the noble Lord, Lord Carlile of Berriew, who asked what it means. That statement is in the form that it is in the Bill because those are the words in Section 19(1)(b). That is what Parliament told the Minister to say. The structure is that if the Minister cannot make a Section 19(1)(a)  statement, he or she makes a Section 19(1)(b) statement. Rather oddly, all that Section 19(1)(b) says is, “I can’t make Section 19(1)(a)”. Is that sensible? With respect, I do not think it is. If it were up to me, I would take out Section 19(1)(a) and Section 19(1)(b), which add more distraction than assistance. They were put in for political rather than legal reasons, and that is why the Section 19(1)(b) statement is in the form that it is in.

Lord Hope of Craighead: I recall saying once in the Appellate Committee that the courts were not bound by the statement—it has no legal effect.

Lord Wolfson of Tredegar: The noble and learned Lord is absolutely right; it has no legal effect. Can I put this another way? The Minister can make a Section 19(1)(b) statement and the court can find that the Act is compatible. The Minister can make Section 19(1)(a) statement and the court can find that it is not.

Lord Carlile of Berriew: Does the noble Lord not agree that the Section 19(1)(b) statement on this Bill is very different from the Section 19(1)(b) statement on the Communications Bill? I am sure that he has looked at it. Secretary of State Tessa Jowell made the following statement:
“I am unable (but only because of Clause 309) to make a statement that, in my view, the provisions of the Communications Bill are compatible with the Convention rights”.
By making that statement, Tessa Jowell made it clear that in a massive Bill there was only one clause that she could not make such a statement about. In effect, she stated that everything apart from Clause 309 was compliant with the Human Rights Act. That is how it was understood; we can all read the debates. Is it not incumbent upon the Government, when they make a statement as vague as that on this Bill, to explain what is and what is not compatible with the Human Rights Act?

Lord Wolfson of Tredegar: The noble Lord is making a political point. It may be good politics or bad politics, but whether the Government want to do that or not, my focus is on Section 19 of the Human Rights Act, which is very clear:
“A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading … (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights … or (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill”.
We could have a nice debate about whether the statement in the Communications Act 2003 was consistent with Section 19, but that is not my point. My point today is simply that we cannot legitimately criticise the Minister for making precisely the statement that Parliament told him to make in Section (19)(1)(b) if he cannot make a Section 19(1)(a) statement.

Baroness Chakrabarti: With respect to the noble Lord, nobody is criticising the Minister for making the statement. The noble Lord is the distraction, not Section 19. We are criticising the Bill that cannot be stated as compatible. It is the legislation that we  have a problem with, not the honesty of the Minister in saying, “I can’t say that I believe this to be compatible”. It might be politics, but politics is the process of legislative scrutiny. The objective of Section 19 was to force Ministers to put their money where their mouth is in the debate and to say whether they believe that this draft legislation complies. If they say, “I can’t be sure”, it is quite right for us to do what we are doing. With respect, this is smoke and mirrors and not to the substance of this Bill.

Lord Wolfson of Tredegar: It is certainly not smoke and mirrors. The force of the noble Baroness’s point is, “If you can’t make a Section 19(1)(a) statement, there is something irremediably bad with the Bill”. My point is that if you are legislating in a novel area, there may well be circumstances in which you cannot make a Section 19(1)(a) statement. A Section 19(1)(a) statement is a 51:49 statement that, in your view, it is compatible. If you therefore think that it is finely balanced as to whether it is, you cannot make a Section 19(1)(a) statement. It would be wrong in those circumstances for a Government to think, “I shouldn’t bring this Bill before Parliament merely because I take the view that it is 50:50”.

Baroness Chakrabarti: I am grateful to the former Minister and sure that he listened carefully to how Section 19 was introduced into the deliberations of the Committee earlier, not least by the noble and learned Lord, Lord Hope. Members of the Committee have been pointing to the contradictions in the Government’s position around the compatibility of this Bill—Section 19(1)(b) on the tin and then something else in the ECHR memorandum. It is the clarity of the Government’s belief that Members of the Committee have for some hours this afternoon been looking for.

Baroness Ludford: To avoid the noble Lord, Lord Wolfson, having to be up and down too many times, I will jump in here. The noble Lord, Lord Carlile, pointed out that the Secretary of State’s inability to make a Section 19(1)(a) declaration was in relation to only one clause. The content of that clause was the proposed ban on political advertising across all broadcast media. One can see why that might inhibit a Section 19(1)(a) declaration, but it is not on the same scale as what many of us in this Chamber this afternoon maintain are the various and extremely serious breaches of the European convention commitment. It is apples and pears, or chalk and cheese—I am mixing my metaphors horribly. It is not a good precedent for saying why there cannot be a declaration of compatibility for this Bill. It is not on the same scale.

Lord Wolfson of Tredegar: I am grateful for that shortish intervention. Essentially it raises the same point that the noble Lord, Lord Carlile, put to me and, without any disrespect, I give the same answer. I am focused, as a matter of principle, on what Section 19 does.
Amendment 2, which has already been referred to by my noble friend Lord Sandhurst, disregards Section 3 of the Human Rights Act 1998, which is a very odd section. Uniquely in our law, it requires that other Acts of Parliament be interpreted:
“So far as it is possible to do so”
in accordance with the convention rights. We do not do that in any other area of our law.
The case law under Section 3 is extremely complex. As has been referred to before, Sir Peter Gross set this out in his review of the Human Rights Act. I would be entirely content if I could be sure that the current law on what Section 3 does remains the law. What we have seen, however, when we look at Ullah, Al-Skeini or other cases, is that what Section 3 means and how it is interpreted by the courts has moved. In those circumstances, the Government are right to exclude Section 3 of the Human Rights Act from the Bill by way of its Clause 1(5).
Finally, let me say a quick word about Amendment 4, which I will take with Amendment 84. I object to these amendments on a point of principle. We have a list of treaties that are not incorporated into our domestic law. The effect of this sort of drafting is incorporation by the back door. What Parliament will be saying is that anything in the Bill or Act has to be read subject to these treaties. Let us just have a debate; I cannot hear what the noble Baroness, Lady Chakrabarti, is saying, but I will give way if she wants to say it. If Parliament wants to incorporate treaties, it can do it, and those treaties become part of our domestic law. These treaties are not part of our domestic law. I do not understand there to be a Bill from anywhere in the House that makes them part of our domestic law. This sort of drafting makes them part of our domestic law by the back door and privileges them over Acts of Parliament. That is wrong in principle.
With great respect to my noble friend Lord Kirkhope of Harrogate, he referred to those who take a divided view between domestic and international law, but that is what we have done in this country since time immemorial. We are a dualist state. International treaties are not part of our domestic law. Of course we need to have regard to them, as I made very clear at the start of my remarks, but we should not incorporate them by the back door.
Amendment 84 is even worse, because it states:
“No provision … is to be interpreted or applied”
contrary to these treaties or
“authorising decisions or policies which would have this result”.
We legislate; the courts interpret. I suggest that the courts should assume that we do not deliberately intend to legislate contrary to our international obligations. That is similar to the principle of legality set out by Lord Hoffmann in the Simms case, but this amendment is wrong as a matter of constitutionality.
Finally, before I sit down, I will suggest an answer to the noble Viscount, Lord Hailsham, who asked why Clause 1(2) was in the Bill. I suspect it is in the Bill because, in this area of the law, as in the area of ouster clauses, for example, there has been something of an arms race between the courts and Parliament. Parliament says X, and the courts say, “Well, did Parliament really mean X? I think it might have meant Y”. Then Parliament says, “No, no, we really meant X”. I suspect we have these purpose clauses to make sure that, on any question of interpretation that comes before the court, it is  clear what Parliament was trying to do. Whether that is a good or bad way to legislate is a separate question, but that is an answer to the noble Viscount, Lord Hailsham. I was going to sit down, but I will give way.

Lord Hannay of Chiswick: I am most grateful to the noble Lord, because I was following with interest his argument, which seems to be that there are two sorts of obligation—those we incorporate in domestic law and international obligations—and the international obligations are less binding, important and necessary. Perhaps the noble Lord could tell me what the status of the UN charter or the Brussels treaty on NATO is. Does he mean that we, as a Parliament, could decide not to apply Article 5 of the NATO treaty? That would be a pretty serious statement to make.

Lord Wolfson of Tredegar: I am reluctant to give the noble Lord a private lecture on this, but I will set out a very short answer. I will be blunt but, I hope, legally accurate. The short answer to the noble Lord’s question is yes; we could do it. International treaties are not part of our domestic law. As far as our domestic courts are concerned—please let me finish and I will give way—if we were to legislate completely contrary to an international treaty, our domestic courts would have to abide by the Act of Parliament, because that is domestic law. Of course, that would put the UK in breach of the international treaty. It is not something I would recommend, but the noble Lord asked me a direct question about how the two interrelate, and that is a necessary consequence of being a dualist state. International treaties are not part of domestic law, unless and until they are incorporated.

Lord Carlile of Berriew: This could develop into a really interesting argument, I am afraid—between lawyers. The noble Lord just referred to the dualist theory, which of course is very important, but, in reality, international treaties are not usually entered into legislation because they are made under the royal prerogative. But that does not make them any less binding.

Lord Wolfson of Tredegar: I started my remarks by saying that international treaties are extremely important and that we should always legislate consistently with our international obligations, except in the most unforeseen and unusual circumstances. But that is not the question I was asked by the noble Lord, Lord Hannay. We are a dualist state. That is why we should object to these amendments, which seek to incorporate treaties by the back door.

Baroness Chakrabarti: As a matter of fact, the European Convention on Human Rights was incorporated by the Human Rights Act 1998, the UN Convention on the Rights of the Child was incorporated by the Children Act and so on. These particular treaties have been given special status in our domestic law. I also take some exception to the idea that Amendment 4, which everybody can see, is somehow surreptitious or “back door”. We are having this debate because, by definition, some of us want this protection very much via the front door.

Lord Wolfson of Tredegar: With great respect, the noble Baroness is wrong. The Human Rights Act did not incorporate the convention. Can I just finish what I was saying? It took certain articles of the convention and reproduced them in a schedule to the Act of Parliament. That is not incorporating the convention; it is reproducing certain articles of it in the Human Rights Act. The point is not relevant to today but, if I am going to be interrupted on a point of law, at least let it be right. One has only to look at Schedule 1 to the Human Rights Act to see what that Act did.

Baroness Jones of Moulsecoomb: Before the noble Lord sits down, I hesitate to butt into this very exciting conversation between some great legal minds. I will of course pore over it in Hansard tomorrow. The point about courts saying “Did the Government mean this or that?” is that we are passing very bad laws that are not explicit—that is the fault of the Government—and this will be one of them.

Lord Wolfson of Tredegar: I entirely agree with the noble Baroness that we should pass clear legislation. I think she used the word “exciting” to describe lawyers.

Baroness Jones of Moulsecoomb: It was a joke.

Lord Wolfson of Tredegar: That is the first time I have heard the word used. The noble Lord, Lord Carlile of Berriew, used the word “interesting”, which is at least better than “expensive”, which is the usual word used. On that, perhaps I should sit down.

Lord Dubs: My Lords, as a non-lawyer, I have found the last few minutes absolutely absorbing. I have learned a great deal without having to pay any tuition fees. I shall peruse Hansard with a great deal of interest and will advise any law students to do the same.
Although I am not a lawyer, I will make two brief comments. For some years, I have served on the British delegation to the OSCE, the Organization for Security and Co-operation in Europe. It is slightly different from the Council of Europe, but it involves a lot of discussion nevertheless. I serve on its migration committee and we have had a lot of discussion about how we do things in this country and about how other countries behave.
What I have noticed in recent years is that the respect which we as a country have earned has been somewhat diminished, and I am asked, “Why are you doing this?” and “Isn’t this a departure?”. I remember some years ago, when we still had a lot of respect, I was asked what I thought in terms of the British experience of the rule of law and so on and how I would approach a particular issue; I ventured to indicate how I thought we would do it. But those questions are not being asked any more. We are no longer treated as a model that has earned international respect because of abiding by the rule of law and doing things properly and openly.
I would have thought this Bill has debased our reputation, certainly in countries that follow these issues, and I think that is a matter of enormous regret. I used to take pride in the fact that, in international gatherings, I came and represented a Parliament of a  country that was treated well by other countries. They regarded us as an example to follow, and I fear that that is much less the case than it used to be.
I will briefly make one other point about public opinion. Of course, I am aware that what we do and what public opinion thinks is crucial. We cannot just act as if public opinion did not exist. I remember when I introduced an amendment in 2016 about refugees—Theresa May was then Home Secretary—public opinion influenced the Government’s attitude. Initially, she asked me to withdraw my amendment, and I said I would not and then public opinion woke up to what was happening: it was the television pictures of the Syrian boy, Alan Kurdi, drowned on a Mediterranean beach.
I have told this story before. The amendment was going through and I heard somebody shout at me in the street. Now, we know that normally, when people shout at us in the street, it is abuse because we are politicians. In this case, a woman shouted out: “Keep going with your amendment”. It made me realise that public opinion is not monolithic and opposed to refugees; it moves with the times. The sad thing is—I am not allowed to call anybody a liar, am I?

Baroness Jones of Moulsecoomb: Yes, go on.

Lord Dubs: I shall be very careful—I do not want to be thrown out of here. During the referendum campaign, Boris Johnson said that if we did not leave the EU, 70 million or 80 million Turks were poised to enter Britain. That inflamed public opinion and moved it away from sympathy for immigrants, and indeed for refugees, as the public do not always distinguish between the two. It made me realise that public opinion can move about, but it is important. I have said all along when I have talked about refugees that it is important that we explain what is going on in such a way that public opinion is on our side.
On Amendment 4, I believe that the British public on the whole, if it was explained sensibly and objectively, would say, “We understand why we adhere to these international treaties, why they matter and why they are important”. I fear that, when eminent members of the Cabinet talk about “invaders”, they seek to poison public opinion and make it less sympathetic to how we treat asylum seekers and refugees. I think that is very sad indeed. The language we use too often does influence public opinion and I hoped at least some of this debate would have gone the other way. I think those of us who believe in the 1951 Geneva convention and the other international agreements have a responsibility to try and explain the issues in such a way that British people understand what is at stake. I believe there is a great deal at stake here.

Lord Paddick: My Lords, we support the clarifying amendments in the name of the noble and learned Lord, Lord Hope of Craighead, and my noble friend Lady Ludford has explained at length the reasons for her Amendment 2. I, too, will read the official record in an attempt to understand the points raised by the noble Lords, Lord Sandhurst and Lord Wolfson of Tredegar. Having done that, I may just leave that to the lawyers to argue among themselves.
However, as the noble and learned Lord, Lord Hope of Craighead, has said, if this Bill is not compliant with the European Convention on Human Rights, then the Government should say why or which bits of it are compliant. If there is a precedent for the Government to say that a Bill is not in compliance with the European Convention on Human Rights—the precedent set in the 2002 Act—then surely the precedent set by the 2002 Act is that the Government also say which bits of the Act are not compliant with the European convention.
We support Amendment 4 in the name of the noble Baroness, Lady Chakrabarti. This country should meet its international obligations for the reasons she and many other noble Lords have comprehensively explained. That is the sentiment behind Amendment 4. There may be some legal argument around whether that is incorporating international conventions into domestic law by the backdoor, but it does not detract from the fact that the noble Baroness is trying to ensure that this country abides by its international obligations.
The noble Lord, Lord Hannay of Chiswick, was concerned that this was a slippery slope. If I am correct—and maybe the Minister will correct me if I am wrong—there is a similar provision to Clause 1(5) in the Victims and Prisoners Bill, which indicates that this could be a slippery slope, disavowing the European Convention on Human Rights one Bill at a time.
We also support the amendment in the name of the noble Lord, Lord Alton of Liverpool, so clearly explained by my noble friend Lady Hamwee, and we will get on to the substantive issues in future groups. This Bill seriously undermines the protections provided by the Modern Slavery Act, as the right honourable Theresa May MP has also pointed out.
The noble Lord, Lord Hodgson of Astley Abbotts, talked about 700,000 people coming to the UK potentially to settle. The 700,000 is the net migration figure. According to the Daily Telegraph—and I do not know where it got the figures from—the Government gave 1,370,000 people visas to come and settle in the UK, not 700,000.

Lord Hodgson of Astley Abbotts: I draw the noble Lord’s attention to the fact that he is conflating two different purposes. One is rights of admission—that is for the 1.3 million—the 700,000 have the right to remain. They are quite different, and the 1.3 million do not impose the burden on us in so far as 1.3 million people, but 700,000 people here permanently need to have, as I have said, houses, schools, jobs and all the other stuff which we expect and which they must have if they are fully paid-up citizens of this country.

Lord Paddick: I will apologise to the noble Lord if I am wrong, but my understanding is that the 700,000 is net migration. That is the number of people whom the Government have given permission to come and live here—1,370,000—minus the number of people who have left the UK, so not exactly what the noble Lord has said at all. It is an issue. As the most reverend Primate said, this Bill deals with 45,000 compared with the 1,370,000 the Government have given permission to come here.
Similarly, we support Amendment 148 in that none of the Bill’s provisions should come into force until the Secretary of State makes a statement that this Bill is compatible with the European Convention on Human Rights.
To the Minister, I would say that with noble friends like the noble Viscount, Lord Hailsham, and the noble Lord, Lord Kirkhope of Harrogate, the Government clearly have serious questions to answer. In answer to the noble Lord, Lord Horam, and the noble Baroness, Lady Fox of Buckley, whatever the solution to the overall immigration issue is, it cannot involve this country riding roughshod over its international obligations. As a commander said to me when I presented my solution to a very difficult problem in the police, I do not know what the solution is but it is not this.

Lord Coaker: My Lords, it is a privilege to wind up for His Majesty’s Opposition. I start by declaring my interest as a trustee of the Human Trafficking Foundation and my work with the University of Nottingham’s Rights Lab. I thank the Minister for arranging for my noble friend Lord Ponsonby and I to visit Western Jet Foil in Dover yesterday and the Manston reception centre to see the work that they do there. I know the Minister will join us in saying to noble Lords that, whatever our debates about policy, the work, commitment, professionalism and dedication of those people who are saving lives at sea and helping people when they come ashore are second to none, and they deserve our praise and tribute.
Having said that, nobody is saying, as we debate the Bill, that there is not an issue about the boats and those coming across the channel in that way. Nobody is disputing that. Nobody is saying that there is no need to control our borders. Nobody is saying there is no need for any of the sorts of policies that we have been debating. What is before us is the way that it is done. What is the policy objective? What is the way of doing it? What is the way of controlling it? From the contributions that have been made, the debate that we have had here is saying that the Government have got it wrong and that not only will it not work—and I will come to the other points in a minute—but that it is not consistent with the principles we hold. That is a perfectly acceptable view to have. It does not mean that you are in favour of as many boats as possible coming across without any reflection on what we might do about it or that we do not care about that; it is saying that it is not the right way of going about it.
Many noble Lords have been Members of the other place, as I have. Nobody is seeking in the slightest sense, as a couple of noble Lords have suggested, to block the will of the House of Commons as it has been expressed. That was defeated by a heavy majority in the vote last week, or whenever it was. That majority included me as I did not think it was right thing to do, but I will not be intimidated by the other place into not saying that this House has the perfect right to stand up, to change the Bill if we think it is wrong, to take out of it things we think are wrong and to say to the other place that it should think again because what it is seeking to do is not right. That is a perfectly reasonable thing to do and is the constitutional position of this House.
My noble friend Lord Dubs is right: sometimes people will pray in aid public opinion one way or another and it changes. I could quote the local election results and some results where one would think that if the “stop the boats” message was working, there would have been different results from those that happened, but I will not make a political point. The point that I am trying to make is that public opinion changes, it moves and sometimes, as my noble friend Lord Dubs reminded us, it is incumbent upon people to say, without being arrogant or out of touch, that in this respect we think this is the right way to go forward, this is the right thing to do.
The other point I want to make is that we are not a direct democracy; we are a representative democracy. That is an important point to make.
Although I signed Amendment 2, which is important, Amendment 4 goes to the heart of this group. The noble Baroness, Lady Chakrabarti, the noble Lords, Lord Paddick and Lord Kirkhope, and the noble and learned Lord, Lord Etherton, deserve a lot of praise for tabling it because it goes to the heart of the Bill. I think that in many ways—I disagree with noble Lords who say that this is not the case—it is unbelievable that we are having to discuss an amendment to a Bill which says that this Bill, which a Government of this country are bringing forward, has to be consistent with the international conventions that we have signed. I would have thought that was a given.
I know there has been a great legal debate about what law means and whether we are a dualist country. I had never heard the word “dualist” until about a week ago. My simple understanding was, and the noble Lords, Lord Hannay and Lord Patten, and others made this point, that whether we are a dualist country or not, when a country signs an international convention, when it agrees with other countries that these are the rules that it is going to abide by, I think they probably think that means that it is going to abide by it whether you are a dualist country, a monist country or whatever country it is, because they believe that the Government of the country that they have negotiated an agreement with have made a binding commitment in terms of how they will proceed. That is the point. The noble Lord, Lord Patten, knows what happened in Hong Kong with the agreement. That is the whole point. The noble Lord, Lord Hannay, has done more of those negotiations. What are we doing with Russia? We are saying to Russia in Ukraine that we are not going to stand by and watch it drive a coach and horses through international agreements and international conventions. We are not going to stand by and watch that happen. I am proud our country is doing that.
That is why Amendment 4 is so important, but it is, frankly, unbelievable, as I said at the beginning, that it has had to be tabled. Is it really the case that our Government are telling the United Nations commissioner, the Council of Europe commissioner and all the other people who have said that this Bill breaks those conventions and things that we have signed, “You are wrong and we are right”? Is that really what we have come to? Is that really the situation that we are in? Are we not concerned about our reputation? The Government will say that it is not the case. I am sure the Minister will get up and say that we are abiding by these  conventions and that the Government do not understand why the commissioner has written and that he or she is wrong in writing to us and saying that we do not abide by this convention or that convention. I am sure that the Minister will say that, but why are they writing to us? They cannot both be right. Either they are right or the Government are right, and yet they are saying to the Government that many of the conventions they have signed are being broken by the Illegal Migration Bill. What is our Government saying? Has it really come down to our Government just dismissing it, just a shrug of the shoulders, it does not matter, who cares, we are not bothered? That is no way for a Government to run their affairs. The consequences of doing that are enormous.
I finish by returning to the point about Amendment 4. I think it does us a favour; there might be one or two other conventions, but the amendment lays it out. These are fundamental ways in which countries have come together to say that, when dealing with some of the most difficult situations that we face, including the mass movement of people across borders, no country can do it alone. There must be co-operation, agreement and understanding—and those agreements and that understanding are based on countries believing that what they are told by another country will be adhered to and promises will be kept.
If that is not the case, all this will fall apart and we will have international anarchy. Our country cannot solve the problem of refugees and migration alone; it needs to work with others. That was the basis of the conventions that we signed and of the agreements that we made; our international reputation stands on it and we should keep it.

Lord Murray of Blidworth: My Lords, we have had a very interesting, long and good debate, which has had perhaps more than a hint of a Second Reading debate—but, of course, that is unsurprising, given that Clause 1 sets out the purpose of the Bill. We will of course be able to revisit this debate in the second group when we have the “clause stand part” Question.
We have heard thoughtful speeches from many noble Lords, but I particularly valued the insights from the noble Baroness, Lady Fox, my noble friends Lord Hodgson, Lord Horam, Lord Sandhurst and Lady Lawlor, and my noble and learned friend Lord Wolfson.
For now, let me respond to the amendments directly. First, Amendments 1 and 5, tabled by the noble and learned Lord, Lord Hope of Craighead, seek to add into the Bill definitions of “illegal migration” and “unlawful migration”. The noble and learned Lord has suggested that this would be helpful in the interests of legal certainty. As a lawyer myself, I am all in favour of legal certainty but, in this instance, I am not persuaded that adding these definitions helps in this regard.
It is important to incorporate Bill-wide definitions in a Bill where terms are used across the Bill. We have done that in this Bill and, as noble Lords will have noticed, Clause 64 includes an index of defined expressions. But I put it to the noble and learned Lord  that nothing hangs off the terms “unlawful migration” or “illegal migration” and, consequently, there is no need to define them. The term “unlawful migration” is used only once in the Bill, in Clause 1(1), while the term “illegal migration” is used only in the Short Title, as the noble Baroness, Lady Chakrabarti, observed. Moreover, it is clear from Clause 2 that the duty to make arrangements for removal applies to persons who meet the four conditions in that clause. It does not apply to other persons who may be in the country unlawfully—for example, because they have overstayed their limited leave to enter or remain. In short, the Bill is clear without these two terms being defined.
As regards the early intervention in the debate from the noble Baroness, Lady Meacher, a point repeated by both the noble Baronesses, Lady Chakrabarti and Lady Hamwee, as well as my noble friend Lord Kirkhope and the right reverend Prelate the Bishop of Chelmsford, I remind your Lordships that the Immigration Act 1971 was recently amended by the Nationality and Borders Act 2022 with regard to the criminal offences relating to illegal entry and arrival. This includes people who enter the UK without leave or arrive in the UK without permission: for example, without a visa where that is required under the Immigration Rules. This means that such persons are illegal migrants whether or not they go on to claim asylum. This, if I may say, answers the question from the noble Baroness, Lady Hamwee, of what makes a route illegal. The answer is: legislation, passed in the normal way, and scrutinised and passed by this House.
The suggestion by the noble Baroness, Lady Chakrabarti, that anyone making claims under the refugee convention can never be illegal, represents, with respect, a muddled reading of the convention. The convention is clear that states can still operate controls on illegal migration and, under Article 31, it is expressly permitted to disadvantage those who have arrived illegally from safe countries—which is true of all who come from France. This embodies the first safe country principle in the sense that Article 31 protections apply only to those who have come directly from unsafe countries—a point made by my noble friend Lady Lawlor.
The first safe country principle is also widely recognised internationally, including in the Common European Asylum System, a framework of rules and procedures operated by EU countries together, based on the refugee convention. I would add that the noble Baroness, Lady Chakrabarti, may have overlooked the fact that, under Clause 2(4) of this Bill, the “duty to remove” does not apply to those who have come directly from unsafe countries, in line with the refugee convention.
The refugee convention seems to be raised to support statements that are not all borne out by its terms. We must interpret the convention as it is written, not as others would wish it to be written.

Lord Hannay of Chiswick: I thank the Minister for giving way. I merely want to ask whether you are recommending that all of the 46,000 who arrived last year should be sent back to France. If so, has the Prime Minister had any discussions with President Macron about that?

Lord Murray of Blidworth: As the noble Lord knows, the Prime Minister and President Macron have had regular discussions and there have been regular treaties and agreements in relation to the enhancement of police powers in France, but it is not presently the position of the French Government that they are willing to accept the return of those who have entered the UK illegally. That is what drives the Government to look for other avenues to dissuade people from embarking on the dangerous journey across the channel.
Turning to Amendment 2, tabled—

Baroness Ludford: I am sorry to intervene on the Minister, but I wonder if he could direct my attention to where in Article 31 of the refugee convention it refers to “illegal migrants”. I can find a reference only to “illegal entry or presence” or “entry or presence without authorisation”. It is the entry or the presence that is illegal or unauthorised; it is not the person. That is the problem that many of us have with the term “illegal migrant”. I cannot find it in Article 31 of the refugee convention; perhaps I have not looked hard enough.

Lord Murray of Blidworth: I am very grateful to the noble Baroness. I was indeed about to mention her in my next sentence. Let me address that point and repeat what I said earlier. The phrase “illegal migration” in the Short Title of the Bill refers to the fact that the act of entering otherwise than in accordance with immigration controls was criminalised by an Act passed by this House and the other place in 2022. That is why it is correct to describe such people as “illegal migrants”—because they did not enter in accordance with immigration controls. That is the long and the short of it. The interpretation of Article 31 is irrelevant as regards that point of certainty.
I turn now to Amendment 2, tabled by the noble Baroness, Lady Ludford. This amendment seeks to strike out subsection (5), which disapplies Section 3 of the Human Rights Act 1998. The disapplication of Section 3 will ensure that the Bill’s provisions will be interpreted to meet the legislative intent of Parliament, rather than the strained interpretations imposed by the courts to achieve compatibility with convention rights. As my noble and learned friend Lord Wolfson, King’s Counsel, pointed out, Section 3 is an unusual provision in UK law and there is, in principle, no reason why it cannot be excluded in cases like this.
It is our view that Parliament and the Government are better suited to address the sensitive policy issues involved in this legislation. It is therefore only right that Section 3, which requires the court to interpret the provisions to achieve compatibility with convention rights, must be disapplied so that courts interpret the law in accordance with the purpose of the Bill. Through this, we are ensuring that the balance between our domestic institutions is right and that Parliament’s intent is clear to the courts.
As the noble and learned Lord, Lord Hope, explained, Amendment 3 flows from the recent report of the Constitution Committee. I am very grateful to that committee for its scrutiny of the Bill. We are studying its report carefully and will respond in full ahead of Report. As for the genesis of the amendment, the noble and learned Lord explained that the Constitution  Committee considered that more explanation was needed around the Section 19(1)(b) statement that I made on the introduction of the Bill in this House.
Notwithstanding that the noble Lord, Lord Kerr, quoted from my Second Reading speech on this issue, I reiterate the point I made at that stage: a Section 19(1)(b) statement means not that the provisions of the Bill are incompatible with the convention rights, only that we cannot be certain that they are compatible. The assertion suggested by the noble Lord, Lord Coaker, in his speech a moment ago, that the statement amounts to a concession that measures in the Bill are incompatible, is not the case. The purpose of Section 19, as my noble friend Lord Wolfson set out, is that it is a statement that the provisions of the Bill are incompatible with convention rights and we cannot be certain that they are compatible. It is of course a measure in a piece of legislation passed by the last Labour Government and therefore something that the noble Lord, Lord Coaker, would no doubt place great weight on. Those are the terms that we find in Section 19 of the Human Rights Act.

Lord Carlile of Berriew: Does the Minister not think that it might at least be a courtesy to the Committee to set out which of the provisions, in his view and that of the Home Secretary, are or are not compatible with the convention? That would help us to determine the quality of the legislation that is proposed.

Lord Murray of Blidworth: I will come to address the issues of the broad applicability of the Section 19(1)(b) statement. There is no requirement in the Act for a statement to identify any particular section. Indeed, I do not want to wade into the waters that were nearly ventured into during the interventions on my noble friend Lord Wolfson’s speech about whether the Section 19(1)(b) statement in relation to the Communications Bill, as it then was, was in accordance with the statute.
In any event, I return to the principle of Section 19(1)(b) statements. It is right to say that they have been made by Governments of all stripes, not least in the Communications Bill, as we heard earlier in the debate, but also by the coalition Government and by Nick Clegg in the House of Lords Reform Bill 2012. As my noble friend Lord Wolfson rightly indicated, issuing a Section 19(1)(b) statement is a legitimate choice given to Ministers under the Human Rights Act. Why else would the Act provide for such a course?
As I have said, previous Governments have issued such statements, and clearly that has not caused our international reputation to collapse. More broadly, I encourage the Committee to approach questions of international reputation with a proper perspective. The world can be in no doubt that we are defenders of rights and liberty, the most obvious example being our leading support for Ukraine.
Requiring guidance to be approved by Parliament on how the Bill’s provisions are to be interpreted within the meaning of the Human Rights Act is unnecessary. On 7 March the Government published a memorandum addressing issues arising under the ECHR, and a supplementary memorandum was published in April in relation to the government amendments tabled  for Report in the Commons. These memoranda set out a provision-by-provision ECHR analysis, so I submit that the Government’s position is clear, and the noble Lord, Lord Carlile, will find the answers to his questions about what sits behind the Section 19(1)(b) statement in those memoranda.
It will undoubtedly be necessary to provide Home Office staff, immigration officers and others with appropriate guidance to support the implementation of the Bill. It would not be appropriate for such routine operational guidance on the implementation of a particular Act to be subject to parliamentary approval.
Notwithstanding our view that the provisions of the Bill are capable of being operated compatibly with the convention rights, Amendment 3 is at odds with the approach taken in Section 6 of the Human Rights Act 1998. As the noble and learned Lord will know, Section 6(1) of the 1998 Act requires public authorities to act compatibly with the convention rights, but Section 6(2) expressly disapplies the requirement in Section 6(1) in two circumstances. First, the requirement in Section 6(1) does not apply to an Act if, as a result of the application of one or more provisions of primary legislation, the public authority could not have acted differently. The second exception applies to an Act if, in the case of one or more provisions of or made under primary legislation that cannot be read or given effect in a way which is compatible with the convention rights, the public authority was acting so as to give effect to or enforce those provisions. Given those provisions, Amendment 3 risks muddying the waters and reducing, rather than enhancing, the level of legal clarity. Section 6 of the Human Rights Act should be our guiding light here; it affords the necessary clarity for those seeking to give effect to the provisions in the Bill.
Amendment 4 tabled by the noble Baroness, Lady Chakrabarti, looks to remove Clause 1 and replace it with a new clause that provides that nothing in the Bill
“shall require any act or omission that conflicts with the obligations of the United Kingdom”
under the five international agreements specified in the amendment. Amendment 84 in the name of the noble Lord, Lord Alton, is intended to have a similar effect, albeit referencing a different list of international agreements, although both lists include the ECHR and ECAT. The same is also true of Amendment 148 in the name of the noble Baroness, Lady Ludford, albeit that it is focused on compatibility with ECHR rights.
As I have already set out at the Dispatch Box, the Government take their international obligations, including under the ECHR, very seriously. It is already the case that, in the words of the noble Baroness’s amendment, there is nothing in the Bill that requires any act or omission that conflicts with the UK’s international obligations. To that extent, the amendment adds nothing and is unnecessary.
Moreover, Amendments 4 and 84 raise a significant constitutional point. Through the Human Rights Act we have already accepted the provisions of the convention into domestic UK law, and consequently that Act  already provides a framework for public authorities and the courts to apply the convention rights. As my noble friends Lord Sandhurst, King’s Counsel, and Lord Wolfson ably pointed out, disapplying Section 3 simply ensures that the courts will not make strained interpretations of the Bill. It will not disturb our human rights framework.

Lord Lamont of Lerwick: When my noble friend was replying to the noble Lord, Lord Carlile, he said that the ECHR memorandum set out precisely which articles of the convention had that effect and which clauses in the Bill were compatible or not, and, as he says, different rights are listed. But what is the status of that definitive document? He says it is the answer to the noble Lord’s question, but what is its status? Presumably it does not have legal effect in itself.

Lord Murray of Blidworth: That is correct: the ECHR memorandum is one of the documents prepared to support the Bill in its passage through Parliament. Obviously, if a matter of interpretation were required, it is the sort of material that those looking for an interpretation might be minded to refer to. Indeed, it is open to those in Parliament to refer to such documents. It is, of course, right to say that the ECHR memorandum is a standard part of the package in relation to public Bills—so, in that sense, it has regular status.

Viscount Hailsham: Before the Minister leaves this part of his address, will he tell the House whether it is the intention of the Government that the implementation of the Act should be compliant with all the conventions that are set out in Amendment 4? Do the Government intend to comply with those conventions? This House is entitled to know.

Lord Murray of Blidworth: As I have already outlined, it is clear that there is nothing in the Bill that would require the UK to breach its international obligations. The UK takes compliance with those obligations very seriously. As for the other international instruments referred to in these amendments, they have not, by and large, been incorporated into UK domestic law, and we should not seek to do so in this Bill through the back door.

Lord Hannay of Chiswick: The Minister seems to be placing a great deal of weight on there being nothing in this Bill that requires the Government to take action contrary to our international obligations. He would surely agree, however, that there is a great deal in this Bill that enables the Government to take action that would be contrary to our international obligations—and that without any recourse to Parliament.

Lord Murray of Blidworth: I am not sure that I agree with the noble Lord. There is no requirement that powers should conceivably be expressed on the face of every Bill in such a way that they are trammelled by international obligations. That would be contrary to the dualist system, as my noble and learned friend Lord Wolfson made abundantly clear. I am reluctant  to reopen that particular exchange at this juncture, given the time that we have remaining prior to the dinner break.
States take different approaches to their international law obligations. Some states treat international law as part of their domestic law, but the UK, like other countries with similar constitutional arrangements, including many Commonwealth countries, has the dualist approach that we have discussed before. In those states, international law is treated as separate from domestic law and international law is incorporated into domestic law only by decisions of Parliaments through legislation. That is a point we have already discussed. The effect of these amendments would be to make the provisions of all the listed international agreements effectively justiciable in the UK courts. It is legitimate for noble Lords to make the case for incorporation into domestic law of one or more of these international instruments, but that is not the Government’s position, and we should not be using this Bill to secure that outcome.
I hope that, in light of my explanation, the noble and learned Lord will be content to withdraw his Amendment 1.

Baroness Butler-Sloss: I wonder whether the Minister could help me. He said that the Government would apply—I gather—all the conventions that are in Amendment 4. May I suggest that it would be impossible for the Government to apply the United Nations Convention on the Rights of the Child? It is perfectly obvious that the best interests of a child throughout the Bill will not be recognised.

Lord Murray of Blidworth: Clearly, as I have already said, it is the Government’s view that nothing in the Bill requires the UK to breach its international obligations, whether in relation to the UN Convention on the Rights of the Child or any of the other listed international instruments. Of course, the United Kingdom takes compliance with its international obligations very seriously.

Lord Hope of Craighead: My Lords, I am very grateful to all noble Lords who have taken part in this very interesting and far-ranging debate. I am conscious of the time, and I am sure the Committee would not wish me to go over the ground in any detail, and I am not going to do that.
The Minister, with great respect, has not really answered many of the questions that have been raised. We will come back to this, I am sure, possibly in the next group, but certainly these questions will come back on Report and will need to be answered in much more detail. So far as my own amendments are concerned—the definition point—the Minister has pointed out that nothing hangs on these words because they do not reappear elsewhere in the Bill. I was well aware of that when I tabled the amendment, but that raises the question: why brand the actions of these people coming here as unlawful or illegal, unless, of course, they are in breach of specific legislation, which is not always the case? That illustrates the unfortunate wording of Clause 1, which we will come back to.
As far as Amendment 3 is concerned, which deals with the question of guidance, I do not think, with great respect, that the ECHR memoranda amount to the kind of guidance that is needed in a situation where access to the courts is being denied. Something more specific is needed, and that is what the amendment is driving at. Perhaps we will come back to that at some later stage. For the time being, I think the simplest thing I should do, so that we can move on, is beg leave to withdraw Amendment 1.
Amendment 1 withdrawn.
Amendments 2 to 4 not moved.
House resumed.

Royal Assent

The following Acts were given Royal Assent:
Protection from Redundancy (Pregnancy and Family Leave) Act,
Carer’s Leave Act,
Electricity Transmission (Compensation) Act,
Neonatal Care (Leave and Pay) Act,
Northern Ireland (Interim Arrangements) Act.

G7 Summit
 - Statement

Lord True: My Lords, I shall now repeat a Statement made in the House of Commons on Monday 22 May by my right honourable friend the Prime Minister. The Statement is as follows:
“Mr Speaker, the whole House will join me in remembering the victims of the horrific Manchester Arena bombing six years ago. Our thoughts are with them and their families. Our thoughts are also with the family of Lee Rigby on the 10th anniversary of his murder, and I pay tribute to his son, Jack, who is honouring his father’s memory by raising money for other bereaved military children. As Jack’s mum says, Lee would be very proud.
I have just returned from the G7 summit in Japan, where I was humbled to be the first Prime Minister of the United Kingdom to visit Hiroshima. On behalf of this House and the British people, I recorded our great sorrow at the destruction and human suffering that occurred there, and our fervent resolve that it should never again be necessary to use nuclear weapons.
As I report to the House on the G7 summit, I want to address head on a mistaken view that is heard too often: the idea that Britain is somehow in retreat from the world stage, or that our influence is in decline. I reject that utterly. What we have seen in recent months is this Conservative Government delivering the priorities of the British people and bringing our global influence to bear on some of the world’s biggest challenges. Nowhere is that clearer than Ukraine.
It was a pleasure and a privilege to welcome my friend President Zelensky back to the UK last week. His attendance at the G7 summit was a historic moment. When Putin launched this war, he gambled that our  resolve would falter, but he was wrong then and he is wrong now. Russia’s military is failing on the battlefield; its economy is failing at home, as we tighten the strangle- hold of sanctions; and the image of the G7 leaders standing shoulder to shoulder with President Zelensky in Hiroshima sent a powerful message to the world: that we will stand with Ukraine for as long as it takes.
Of course, we have seen a huge collective effort across our allies, not least the United States, but I am incredibly proud of our role at the forefront of international support for Ukraine. We were the first country in the world to train Ukrainian troops; the first in Europe to provide lethal weapons; the first to commit tanks; and, just this month, the first to provide long-range weapons. We are now at the forefront of a coalition to train and equip the Ukrainian air force. We gave £2.3 billion in military aid last year—second only to the United States—and we will match or exceed that this year. Putin should know that we are not going anywhere. We know that Ukraine will not only win the war but can and will win a just and lasting peace, based on respect for international law, the principles of the UN charter, and territorial integrity and sovereignty.
We bring the same resolve to the biggest challenge to the long-term security and prosperity of our age: China. As the G7 showed, the UK’s response is completely aligned with our allies. We are working with others to: strengthen our defence ties across the Indo-Pacific; diversify our supply chains in areas such as critical minerals and semiconductors; and prevent China using economic coercion to interfere with the sovereignty of others—concrete actions, not rhetoric. But our economic security is not just about managing the risks of China: we are taking advantage of our post-Brexit freedoms with a hugely ambitious trade policy.
We have concluded negotiations on the CPTPP, a trade deal with the world’s fastest-growing region. We have signed critical minerals partnerships with Canada and Australia, and a semiconductor partnership with Japan. The Windsor Framework secures the free flow of trade within our UK internal market and, on Friday, we announced almost £18 billion of new investment into the UK from Japanese businesses. That is a huge vote of confidence in the United Kingdom, creating significant numbers of good, well-paid jobs and helping to grow the economy.
We are also acting globally to tackle illegal migration. It is the British Government who will determine who comes to Britain. We must stop the boats and break the business model of the criminal gangs. To do that, we are deepening international co-operation to tackle illegal migration, through new deals with Albania and France and, starting just at last week’s Council of Europe, with the EU border force. At this weekend’s summit, we have secured agreement that we will increase G7 co-operation too, so our foreign policy is clearly delivering for the British people. By strengthening our relationships with old friends and new, from the Indo-Pacific to Washington to Europe, we are delivering a diplomatic dividend for the United Kingdom.
That is not all. We have announced billions more for our defence, as the largest European contributor to NATO. We have signed an historic agreement to design  and build the AUKUS submarine, giving the UK, Australia and the US interoperable submarine fleets in the Atlantic and the Pacific. We have launched a new programme to build the fighter jets of the future with Italy and Japan. We have announced that in 2025, the carrier strike group will return to the Indo-Pacific once more; and, in Sudan, the British military completed the largest evacuation of any country. If anyone thinks the UK is no longer able to wield hard power in defence of our values, just ask the Ukrainian soldiers driving British tanks or firing our long-range missiles.
All that is how we will prosper at home and defend our values abroad. That is how our foreign policy is delivering for the British people and that is why, on the world stage, Britain is forging ahead—confident, proud and free. I commend this Statement to the House”.

Baroness Smith of Basildon: My Lords, I thank the Lord Privy Seal for repeating the Statement. It is very helpful to the House, and I am grateful to him for doing so. I reinforce the comments that he made about the Manchester Arena bombings and the murder of Lee Rigby. There are certain events that, when they happen, all of us remember where we were when we heard about them. I certainly think we still feel the emotions that we felt when we heard about those two.
Having read the communiqué from the summit before I heard the Statement, I have to say the Statement covers a lot more self-congratulatory comments that are not directly related to the summit. That is not the norm, but perhaps I can focus on the parts of the Statement that are relevant. It seemed particularly poignant that we were discussing one ongoing war, in Ukraine, at the scene of a peace memorial park in Hiroshima. That backdrop is a symbol of how the horror of war just haunts for generations.
Putin’s violent and illegal invasion has had an immediate effect on millions of Ukrainians today, and the post-war reconstruction of that amazingly resilient country will take decades. We also have to factor in the longer-term consequences for the future security of Europe. That is why a united front on this issue, here, across Parliament and internationally, is so vital. We continue to welcome the Prime Minister’s commitment to Ukraine, which has the full support of the Opposition Benches. But it is clear that as Ukraine prepares for a counter-offensive, there is no room for complacency or letting our guard down. The international agreement to start providing Ukraine with F16 fighter jets is progress. It is a sign of the unwavering united stand.
New trade restrictions should continue to hamper Russia’s military capabilities, but until a Ukrainian victory delivers peace, we must continue to examine ways of strengthening our support. It is right that the UK’s sanction regime, which I welcome, is broadly aligned with our allies and that designations are being updated. But the noble Lord knows, as I do, that improvements should be made on enforcement. Is my understanding correct that no fines have been imposed for any sanction breaches? Is the noble Lord confident that this is because there have been no breaches? It would be helpful if he was able to provide information and assurances on how we are working with our allies  to monitor the effectiveness of sanctions. We have to do this to ensure that breaches are identified and offenders held to account.
As we all know, Ukraine is experiencing a humanitarian crisis as a result of the invasion, which has a wider destabilising effect, including from the weaponisation of food. We welcome that the leaders’ statement on Ukraine references support to vulnerable countries, including from the World Food Programme. However, I ask the noble Lord specifically: how is the UK working with the UN Refugee Council to support those who have fled the conflict into neighbouring countries?
I was pleased to hear the comments on China. The noble Lord will be aware that we have had many debates and questions in this place about our relationship, business and political, with China and the risks posed. The Government’s commitment to de-risking our economic relationship is of course welcome. Does the noble Lord accept that we really need a full audit of our relations and our engagement with Beijing, and will he look into that?
We must remain at all times committed to our democratic values, the rule of law and the primacy of human rights, at home and abroad. The communiqué’s commitment to being
“more united than ever in our determination to meet the global challenges of this moment”
is both welcome and essential across a range of issues, including support for Ukraine and our relationship with China. The communiqué rightly referred to the situation in the East China and South China Seas. If we are to play our part in this joint approach, can the noble Lord tell us how we will strengthen our defence ties across the Indo-Pacific?
There were key issues discussed at the summit that I was surprised were not even mentioned in the Prime Minister’s Statement, including energy security and climate change. Russia’s weaponisation of energy has acted as a wake-up call, but while it illustrates a vulnerability in our supply, it also provides an opportunity to make Britain a clean energy superpower. Homegrown, cheaper, clean energy will cut energy bills, help tackle the cost of living crisis and support manufacturing and other industries. These issues are reflected across the G7.
It is one thing to discuss these issues, but can I press the Lord Privy Seal on how the Government will deliver on accelerating the transition to clean energy agreed at the summit? How will the UK play its part in the collective increase in wind capacity? He will be aware that the Government are opposed to the cleanest, fastest and cheapest energy sources: onshore wind and solar. That will make the objectives harder to achieve, so can he say something about the plans in place to compensate for that government policy?
The Lord Privy Seal will also be aware that there is a direct link between the environmental commitments and energy security. There were key commitments at the summit which are not even mentioned in the Statement. If he is able to say any more, the House would find it very helpful. Can he say why this is and perhaps provide some reassurance on the Government’s commitment on these issues and the action that will follow the summit?
Other issues that were not mentioned in the Statement include: health and pandemic resilience, digital technologies, artificial intelligence, multilateral development banks, human rights and equalities. I appreciate that not everything can be mentioned, but I hope we will hear more about these between now and the next summit.
In the Statement, the Prime Minister spent some time telling us how well things were going for the Government on foreign policy. There is absolutely no doubt that work internationally is crucial to our future as we seek to meet global challenges together. I have to say I found that part of the Statement really disappointing in its complacency and its quite selective reporting of these issues, so can I press him on a couple of points?
The Government promised a free trade deal with the US by the end of last year, but there has been no reference to this. Perhaps President Biden let the cat out of the bag when he was in Belfast, when he disclosed that talks will not begin until 2025. This is a key relationship for the UK. Is the noble Lord able to say whether the Prime Minister raised the timing of the start of those talks with the President to see if they could be brought forward? Despite the focus on trade in the Statement, there is no mention of the commitment to securing free trade agreements covering 80% of UK trade by the end of 2022. Can the Lord Privy Seal say when the Government now expect that commitment to be met?
There is a real fear that the Government’s lack of ambition and action will mean lost opportunities for the jobs and economic growth that we so badly need. We see other countries forging ahead. For example, the Government’s response to the US Inflation Reduction Act is so critical. We should be using that as an opportunity to seek out new opportunities for the UK. He will also be aware of today’s news that UK borrowing has reached significantly higher levels than expected, and of the associated costs of that. Was there discussion about how the Government expect to restore global confidence in the UK economy, which continues to lag behind international competitors in terms of growth and investment?
This was clearly a valuable summit with some very important outcomes, particularly on Ukraine and China. But if the Government really want to be a leader on the international stage, they have to be more proactive in securing a stable and growing economy here in the UK.

Lord Newby: My Lords, I would like to thank the noble Lord the Leader for reading out the Statement. Normally I am happy for it not to be read out, but on this occasion I welcome the fact that he did so, because it demonstrates the gulf between the Prime Minister’s self-congratulatory posturing and the substance of what was actually discussed at the summit.
The Prime Minister devotes one-quarter of the Statement to Ukraine. On these Benches we strongly support the UK efforts in supporting the Ukrainian people in their struggle against Russia. But all the Statement does is boast about what the UK has already done, not what the Prime Minister thinks the summit might have achieved in supporting Ukraine in the future. The Statement then speaks briefly about the discussion about China in Hiroshima, before veering  away from the summit altogether and making a series of breathless assertions about how terrific the Government’s foreign policy is. These take up getting on for half of the total content of the Prime Minister’s Statement. I will just raise two of them.
First, the Prime Minister talks about our post-Brexit, “hugely ambitious trade policy”. He particularly basks in the glory of deals done with the CPTPP, Australia and New Zealand. The noble Lord knows as well as the rest of the House that these deals promise potential increases in our level of trade which are a small fraction of the loss of trade we have suffered as a result of Brexit. Could he remind the House of the increase in GDP these deals promise according to the Government’s own impact assessments compared with the reduction in GDP of Brexit estimated by the OBR?
Secondly, the Prime Minister talks about the carrier strike force group returning to the Indo-Pacific region by 2025. Could the noble Lord say how many ships this strike force group will consist of? Is it not the case that we have so few frigates that any strike force group we send will be a sitting target, unless it has a huge amount of covering support from allies? We are deluding ourselves to suggest that we have the capacity to provide any meaningful naval force so far from home waters.
Compared with the Prime Minister’s Statement, the communiqué from the summit, which runs to some 41 pages, covers substantial proposals on some of the most important issues facing humanity. As the Prime Minister did not think any of these were worthy of a mention in his Statement, I wonder if the noble Lord could enlighten us. For example, the summit reaffirmed support for the sustainable development goals to be achieved by 2030. In particular, it stresses the importance of mobilising public and private sector resources for this. In light of the Government’s abandonment of the 0.7% target for development assistance, can the noble Lord explain what the Government are doing to reinforce their efforts in this area? Given the importance of the issue, can he say which UK Government Minister will attend the SDG summit in September? On climate change, the summit reaffirmed its support for “robust” pledges of funding for the green climate fund. What sort of robust pledge has the Prime Minister made, or does he plan to make, on this issue?
The other issues discussed in Hiroshima, as the noble Baroness already mentioned, according to the communiqué were disarmament, the global economy, the environment, energy, economic security, food security, health, labour, education, digital, science and technology, gender and countering terrorism. None of these subjects rates a single mention in the Prime Minister’s Statement. Could the noble Lord the Leader tell the House whether the Prime Minister expressed a view on any of these issues and, if so, what it was?
When Boris Johnson was Prime Minister, we became used to Statements which were full of bombast, self-congratulation and exaggeration. It is depressing to find that his latest successor has decided to follow the same songbook. In doing so, he does a disservice to Parliament and to the country.

Lord True: That was one of the more jaundiced responses I have heard to a Statement, even in the history of some of the responses from those particular Benches.
I will answer some of the points. The Prime Minister certainly addressed a number of these things in the conversation. One of the key features of the summit, which I believe without any bombast, was that it was extraordinarily successful, and the atmosphere was very positive. The arrival of President Zelensky ignited the summit. I totally agree with what the noble Baroness opposite said about the poignant symbolism of Hiroshima and the desperate need for the world to unite, so far as we can, against the bestiality of war. The climate at the summit was extremely positive.
I will not apologise for the Prime Minister pointing out some of the many successes and progressive actions that he has taken since he became Prime Minister, a number of which were mentioned in the Statement. There is no doubt that we have seen a series of successful summits and engagements, including bilaterals with France and the immensely successful bilateral—probably the most successful ever—with Japan. The range of commitments that Japan and the UK have made to each other is certainly unprecedented in the post-war era. Also, I will not deride the trade partnerships we are working on globally; the Statement referred to the Council of Europe, and we have had the G7 successes.
I will address some of the questions. I was asked whether there was a discussion of development finance—yes, there was. The Prime Minister confirmed that the UK aims to mobilise up to $40 billion by the end of 2027 through our British investment partnerships. We have already been active since 2021 and, so far, have created 30,000 jobs and supported 950,000 jobs directly.
I heard the comments about the international financial system reform, and I agree that there are issues here. The sustainable development goals are off track, and we need to build a bigger, better and fairer international financial system that meets future challenges. That means unlocking more finance from international financial institutions such as the World Bank, and from the private sector, to support the poorest countries. The UK, at the G7 and outside it, is working with others to reform the system, and we are playing our part to unlock more finance. Since COP 26 we have announced guarantees to expand multilateral development bank lending by more than £6 billion. The Government are active in those areas, even if they were not mentioned in the Statement.
On global health, the global health framework set out the UK Government’s ambition to play a leading role in improving health globally and in building resilience to future threats. At the G7 we endorsed the Hiroshima Vision for Equitable Access to Medical Countermeasures and agreed to work with the G20 to ensure equitable access to safe, effective and affordable vaccines. These positive things were done and discussed, even if they were not mentioned in the Statement, which, understandably, majored—as the noble Baroness opposite did, rightly—on the crisis in Ukraine.
On climate and nature, which are also important, the G7 ended public support for the international unabated fossil fuel energy sector in 2022. It has done  that already but we will, and must, continue to build on it. We are working with our neighbours domestically to develop the North Sea into a green power plant of Europe, and we will meet the $100 billion climate finance goal this year. At the G7 we have committed to spend £11.6 billion of international climate finance.
I agree with the noble Lord that food security is important. Together with guest countries such as India and Brazil—it was good that they were there, as well as representatives of smaller nations such as the Cook Islands and the Comoros—we agreed the Hiroshima Action Statement for Resilient Global Food Security. We remain absolutely committed to that. As I heard my noble friend Lord Goldsmith say earlier, the Minister for Development announced a further £143 million in humanitarian support for crises in east Africa for this financial year. A lot is being done.
I was asked about the Indo-Pacific. It is of immense importance; it is critical to our economy, security and ambition to support open societies. I disagree with the noble Lord’s rather jaundiced view; that region is central to global and UK supply chains. Some 60% of global trade already goes through the region, and that is set to increase further. We are deepening defence ties via GCAP and AUKUS; we have engaged with more than 40 countries in the region with the carrier strike group, about which the noble Lord was a little disparaging; and we intend to strengthen further ties.
I was asked by the noble Baroness about the state of discussions. We obviously hope for good and positive discussions with the US. I cannot comment on what may or may not have been said to President Biden, but it is an area of important, ongoing discussion. We have a strong free trade agreement policy, which will put the UK at the centre of a network of modern deals that spans the Atlantic, the Pacific and our friends in Europe. We have secured trade deals with 73 countries, plus EU partners, accounting for £852 billion in UK bilateral trade in 2021.
In conclusion, I hope I have not belittled the very important remarks that the noble Baroness made. I am very grateful for the comments from both the noble Lord and the noble Baroness on the horror of Putin’s war and for their support on that. We have sanctioned roughly 1,500 individuals—I will get the exact figure for the noble Baroness. It is certainly not the case that sanctions are not biting and being felt to bite; the G7 agreed to increase them.

Lord Howell of Guildford: My Lords, many issues were covered in the G7 and in the Statement. Does my noble friend the Minister care to reflect on one of them, which is mentioned only briefly in the Statement: the huge importance of Japan to our future prosperity and defence? Japan is the third industrial power in the world and, in fact, much richer than China in second. Statistically, it is enormously active. It has been a massive investor in this country in the past, and I believe it can be again.
Is it not important to remind ourselves that, through closeness with Japan in dealing with security issues—the recent agreements, the building of combat aircraft for the future and the whole range of innovations—this is a nation with which we should stay extremely close?  We should reflect on and remember that in our future policies. I declare an interest as an adviser to a number of Japanese companies. Does my noble friend the Minister acknowledge that Japan and Britain can again be, as they have been in the past, very important partners?

Lord True: I strongly agree with my noble friend. Indeed, I pay the most fulsome tribute to the Japanese Prime Minister for the conduct of the G7 discussions. To repeat what I said, the depth of the agreements between the UK and Japan is reflected in the historic Hiroshima accord—the new agreements on defence, trade, investment, science and technology collaboration, and tackling global issues such as climate change. These are hugely important. There is the new UK-Japanese defence co-operation; the new cyber partnership; a set of science and technology programmes we will work on together; the semiconductors partnership that my noble friend mentioned; and a renewable energy partnership, which I think should delight the noble Lord, Lord Newby, aimed at accelerating the deployment of clean energy in the UK, Japan and third countries. It was extremely positive. The Prime Minister has reflected the warmth of the feeling that he has towards Japan; I think he felt that was strongly reciprocated by the G7 hosts, and we are very grateful for that.

Lord Campbell of Pittenweem: My Lords, I know a little about the background to the murder of Lee Rigby. It was a particularly cowardly event, taking down a well-versed and popular servant of the military of the United Kingdom.
The other point I make by way of a preliminary is that I personally support, as indeed we all do on these Benches, the Government’s position on Ukraine. Significant consequences are arising out of that military engagement and, although this is perhaps not the time to discuss them, the United Kingdom’s support for Ukraine is absolutely fundamental.
Sometimes, reports of such things as the G7 repay rather closer attention to detail. At page 3 of 10 in the print I have, it says:
“Russia’s military is failing on the battlefield”.
Would it not be prudent to wait until we see the outcome of the spring offensive of the Ukraine Government before reaching a conclusion of that kind? Further, on page 7 of the print I have, it is indeed welcome that there is £18 billion of new investment into the United Kingdom from Japanese businesses. Can the Minister say what financial support the United Kingdom has offered and how much? Because it is being suggested that there were very substantial financial inducements.
Finally, on the question of the carrier strike group returning to the Indo-Pacific once more, the last report about one of the carriers that I have been able to find states that on 13 February, HMS “Queen Elizabeth” set sail for a month’s training but without any aircraft. That, of course, reflects the fact that we do not have sufficient F35 aircraft to allow the training of those pilots who are scheduled to fly them. So perhaps a little more candour would have made the Statement rather more credible.

Lord True: My Lords, I thank the noble Lord for his support for the overall stance vis-à-vis Putin’s aggression and our support for Ukraine. Since I had run out of time, I was not able to be warm enough about the consistent support from the parties opposite and indeed throughout the House. It has been deeply valued, not only by the Government but, as I know, beyond these shores and in Ukraine. I hear what he says about the carrier strike force. The agreement is to deploy it, and that proposal has been greatly welcomed by our allies. The previous deployment was very widely welcomed by 40 countries; let us look forward with ambition to a positive outcome from this next deployment.
I listened carefully to what the noble Lord said. It is absolutely right to say that war is an ongoing and unpredictable thing best not entered into, ever—but it is forced on us by Mr Putin. It is undoubtedly the case, and we should not forget it, that the heroism of the Ukrainian army and the Ukrainian people has led to the recovery of substantial territory that Mr Putin thought that he would annex. Indeed, I suspect that Mr Putin thought he might annex Kyiv very swiftly at the start, and it was British support, among other things, that enabled that not to happen. It is my judgment that, since Russia’s illegal invasion, Ukraine has turned the tide, regaining territory, as I say, and it has done it thanks to the bravery of its forces but also to the record-breaking level of international support which was reaffirmed in the G7. We will continue to accelerate support. We have seen the Storm Shadow missiles and the training of Ukrainian soldiers, and that effort will continue.
Once upon a time, someone far more distinguished than I spoke from this Dispatch Box, and I am certainly not going to make any forecasts about the outcomes of war, but I will say that the resolve of the Ukrainian people is unbreakable. They are determined to succeed, in our judgment they will succeed, and we will support them for as long as it takes.

Baroness Bennett of Manor Castle: My Lords, following on from the Minister’s remarks, I have to say that, having visited Irpin and Bucha and met some of the defenders and survivors of those towns where the Russian advance on Kyiv was stopped, I very much echo his comments about the Ukrainian people, who are the ones bearing the enormous human weight that we have to keep acknowledging.
However, my question follows on from the comments of the noble Lord, Lord Newby, and the noble Baroness, Lady Smith. There is a word that is missing from the Statement—shockingly, I have to say. The word “climate” does not appear in the Statement, despite the fact that the Integrated Review of Security, Defence, Development and Foreign Policy, and the refresh as well, say that Britain will make a major priority of its international efforts in
“leading globally on climate change and biodiversity loss”.
That is despite the fact that a large amount of the coverage of the G7 very much focused on its failures on climate. I will quote just one Financial Times headline:
“G7 disappoints on climate progress without deadlines on gas and coal use”.
This is in the context of what was happening in the world as the G7 was meeting. Italy, Croatia, Ethiopia, Kenya, and Somalia all suffered significant deadly  floods. In Canada, unseasonal wildfires have burned an area the size of Wales. India is facing even more potentially deadly temperatures that are unsurvivable. Can the Minister explain how it came to be, in that context, that the word “climate” did not appear in the Statement?

Lord True: My Lords, I have in the past written Statements for Prime Ministers. The Prime Minister writes his own Statements, but if the noble Baroness reads Hansard she will find that there was a substantial discussion of these matters. As I said in my response to the very legitimate question from the noble Lord, Lord Newby, and the noble Baroness, Lady Smith, the importance of the green transition was reaffirmed and we are committed to increased support for renewables. As I said, the G7 ended public support for the fossil fuel energy sector in 2022 and continues to advance on that in its ambitions.
Sometimes, when I hear the noble Baroness, one forgets that we were the first major economy to legislate to end our contribution to climate change by 2050. One forgets, listening to her, that our 2030 nationally determined contribution is one of the most ambitious contributions in the world. One does not hear from her that between 1990 and 2021, we cut emissions by 48% while growing our economy by 65%. One does not hear from her that we have decarbonised faster than any other G7 country and that we have set out to be an exemplar for others. The Government’s support is accelerating the production of clean energy. In 2020 renewable electricity generation accounted for 41.4% of total electricity generation. Why does the noble Baroness, who believes so passionately in these things, not sometimes help to talk up what we are achieving, instead of constantly talking it down?

Lord Adonis: My Lords, I reinforce the cross-party unity on the issue of Ukraine. Might this be an appropriate time to congratulate all our fellow citizens who have been giving personal support to Ukrainians by hosting them in their own homes? This is now going into a second year and is a huge commitment which the British people are making directly to Ukrainians.
However, beyond the G7, alas, support for our robust action in Ukraine is less uniform. It is very notable that among our Commonwealth partners there has been less support for Ukraine and, indeed, too much support being given to Russia, particularly in buying Russian products and Russian oil. I am thinking particularly of India and South Africa. These are very close Commonwealth partners of ours. Will the noble Lord say something about what British diplomacy is seeking to do to bring about stronger support for our action on Ukraine from South Africa and India in particular? It is a big mistake to think that the Ukrainian war is an assault on just the European order: it is an assault on the international order and it is vital that our Commonwealth allies and friends are as robust in resisting it as we are.
On the section of the Statement on trade, I support what my noble friend Lady Smith and the noble Lord, Lord Newby, said about it being deeply complacent. To take a specific example of how complacent it is, is the noble Lord aware that we have lost half of our car manufacturing capacity as a country in the last seven  years? We have done that almost entirely because of a deterioration in the terms of trade with our European partners and lack of investment, including investment from Japanese car manufacturers. They may be very strong on the rhetoric of partnership, because they are very polite—the Japanese are a notably polite nation—but when it comes to actual investment, they have been cutting investment, not increasing it. Unless we can deal with this issue of rules of origin and our lack of battery manufacturing capacity, we could lose the other half of our car manufacturing capacity in the next few years too.
Leaving the complacency and self-congratulation aside, does the noble Lord support urgent trade negotiations with our European partners to get a better deal for our car manufacturers, in particular, an industrial policy that sees us starting to produce those vital components, and big new industrial sectors, notably battery manufacturing, without which we could see a really significant loss of industrial capacity in this country over the next few years?

Lord True: I thank the noble Lord for his comments. I agree that the challenge from Mr Putin is not just to Europe but to the international world order. Our expectation is that any just peace must recognise and come according to the rules of international law. The United Kingdom and others have fully accepted and understood the diplomatic challenge of making the case across the world—among our friends and sometimes people who are not so much our friends—that Putin’s illegal war must be confronted. That was reflected in the extraordinary support for the UN resolutions at the start of the conflict. Obviously, this is ongoing and is an effort that we must and will keep up. I will not comment on the specifics of what went on at the summit because I do not have full read-outs, but obviously it was important that India and Brazil were there. The Prime Minister met Prime Minister Modi in the margins of the G7 on 21 May. There were very positive reflections on the deep ties between the UK and India. Both leaders agreed to work intensely towards a UK-India free trade agreement, which is ambitious but would be mutually beneficial. We committed strongly to support India’s G20 presidency.
I am sorry that the noble Lord is less than rapturous about the inward investment to which I referred. The Covid pandemic, the war in Ukraine and the energy crisis shocked supply chains in the EV industry. That has been a problem for manufacturers across Europe, not just in the UK. We need a joint UK-EU solution and have already raised the matter with the European Commission, at both official and ministerial level. We are ready to work with it and industry to find a solution, and will continue to develop and invest in the UK’s world-leading automotive sector. The Government have committed a record £211 million to battery research. I acknowledge that there is ongoing work to do in the sector but we are ready and talking to our European friends on these matters, quite contrary to the noble Lord’s implication.

Baroness Bennett of Manor Castle: My Lords, I will resist the urge to turn this into a to and fro, although, given that the Minister came back to me  rather robustly on climate, I point out that the noble Lord, Lord Adonis, indirectly referred to one of the major reasons for the reduction in the UK’s carbon emissions: the collapse of our manufacturing sector. The Committee on Climate Change says that we need to shift to looking at consumption emissions, on which figures the UK reduction is considerably less than on territorial emissions.
The question that I actually wanted to raise was about the Statement’s reference to the AUKUS submarine deal. Since that was announced, there has been considerable debate. One issue on which there is grave concern is the potential risk to nuclear non-proliferation. Australia is the first non-nuclear-armed state to remove nuclear material from the IAEA inspection system. That sets a new precedent about which many people are expressing concern. The IAEA is of course not able to monitor outside the current nuclear powers’ naval nuclear reactors, especially on submarines, given their secret location and being inaccessible while submerged. Do the Government acknowledge that there is international concern? What are they doing to address those nuclear non-proliferation concerns?

Lord True: My Lords, I will not repeat the facts that I gave the noble Baroness, which stand for themselves. I am sorry if they felt robust. They were not intended to be robust; they were intended to be informative, but there we are.
So far as the AUKUS arrangement is concerned, I do not want to trespass into internal considerations of a great ally such as Australia. I hear what the noble Baroness says, but the reality is that this is an enormously significant agreement. I give my right honourable friend the Prime Minister full credit for it. International co-operation on submarine development and compatibility is a real step forward. The security of Australia—a much-valued ally and friend of this country—is important to us, as is the security of the Pacific; as I said, 60% of global trade will move through that region. Co-operation with Australia in Five Eyes and other sensitive arrangements is an important part of not only our security but that of our allies, and of world security. I make no apologies for the agreement.

Illegal Migration Bill
 - Committee (1st Day) (Continued)

Debate on whether Clause 1 should stand part of the Bill.

Lord German: My Lords, on behalf of my noble friend Lord Paddick, who will respond later, I am pleased to suggest the deletion of Clause 1, largely because some parts of it have been scrutinised in huge detail but it has not had that scrutiny as a whole. Also, I suspect that many Members of the Committee are waiting for answers to some of the questions that they raised in the earlier debate. I particularly enjoyed the company of noble and learned Lords of all varieties. During the break, I was trying to think what we might call a collection of lawyers giving such erudite opinions.  I have perhaps alighted on “a mêlée of lawyers”. It was interesting that, while they had very different views about what was happening, it was clearly not as simple as saying, “This will be the way in which matters arise from the clause”. We have not yet reached an understanding of the legal position, certainly on Clause 1(5).
The clause is the prism through which the whole Bill is understood. It speaks to its true purpose and impact: to prevent and deter people arriving in the UK irregularly by the threat of their removal, regardless of the rights and conventions disregarded in the process.
While stopping the boats has been the headline, at its heart this Bill enables removal as its primary aim and, in mandating it by statute, people will not have a chance to put their case for asylum in the UK and never be able to acquire leave to remain. There will be extremely limited opportunity for judicial oversight and detention powers will be significantly enlarged.
This is deeply concerning, and it is an approach for which the Government are not even able to provide an impact assessment to demonstrate its efficacy—we have been promised it, but it has not yet been published. Thankfully, the Refugee Council has done an impact assessment based upon the statistics and figures produced by the Home Office, so it would be useful to know, in his reply, how the Minister intends to answer this impact assessment, which is based upon their own figures, without providing the evidence themselves to be able to combat it.
I will not go through the whole detail of the impact assessment produced by the Refugee Council but will focus on some of the headlines. They say that, in the first three years, 30,000 people will be sent to Rwanda; the Government have said that is the total number of people who can be accommodated in Rwanda. Some 257,000 will have their claims rendered inappropriate, undesirable and certainly not admissible. Of those 257,000 people, 45,000 will be children.
Some 193,000 inadmissible people will remain in the United Kingdom because, apart from Rwanda, there is nowhere else to send them. They will be stuck in limbo indefinitely until such time as an alternative can be found. The cost of keeping that number inside the United Kingdom, based upon the current estimates provided by the Home Office, will be £9.6 billion in those first three years. On top of that, we have to add on the 181,000 people still inside the United Kingdom who are waiting for a decision.
It is doubtful, to put it mildly, that this will act as a deterrent to the boat owners. We are currently 20th in Europe, by headcount, on receiving migrants and therefore we are nowhere near the top of the league. The question for the Minister is: does he accept that these figures, which have been produced based upon their own, are correct? If they are not correct, when will we have the evidence to say that they are not?
In excluding the application of Section 3 of the Human Rights Act to those covered by the Bill, there is an expressed acknowledgement that the Bill risks putting human rights at bay. It is interesting that paragraph 5 of the Government’s own European Convention on Human Rights Memorandum says that Clause 1(5), which removes Section 3,
“does not affect the Government’s assessment of compatibility of the Bill with the Convention rights”.
If that is true, I would like the Minister to tell me whether the removal of Section 3 of the Human Rights Act, as contained in Clause1(5), will still mean that those who are seeking refuge here in the United Kingdom will be afforded the rights under the convention, which says that they will be allowed to have their case heard quickly by those who are detaining them. That is a right under the convention. Is that in contradiction to what the Government are proposing, and is it in contradiction to paragraph 5 of the memorandum which the Government have provided?
The concern, which has not yet been answered clearly and to the satisfaction of many Members of this Committee, about the human rights matters and Section 3 of the Human Rights Act, is a concern also highlighted by the Equality and Human Rights Commission, which of course advises the Government. It advises them that it will create a two-tiered system of human rights protection in this country, whereby an individual’s human rights will be interpreted solely on the basis of how they entered the United Kingdom. That is wrong: a human right is a human right, regardless of whoever that human being is. Here, we are talking about some of the most vulnerable people in the world: the female political activist from Iran; the gay man from Uganda; the young man escaping forced conscription in Eritrea; a family fleeing war in Sudan. Those are the people who are going to be affected most by this clause and this Bill.
The provision of Section 3 is an essential mechanism through which courts can correct human rights violations and enable individuals to access justice. It is a basic moral requirement for governing and one which is in the convention. In its report on the Bill, our Select Committee on Constitution confirmed there has been no Act of Parliament which has yet sought to disapply Section 3 of the Human Rights Act 1998. By its application, Section 3 has also reduced the number of people currently pursuing litigation in Strasbourg because they have been able to secure justice domestically. This clause therefore brings with it the potential for extensive litigation in the future. Any observer of the proceedings on the previous group of amendments will have noted that this may well provide a fair playing field for lawyers as these legal battles develop down the line.
In taking this approach in Clause 1, the Government have accepted the likelihood that they could possibly lead to the UK breaching its international obligations. That puts us on that collision course with the Council of Europe and the ECHR. Having the High Commissioner for Human Rights send a letter to the Lord Speaker, in order that all Members of your Lordships’ House should be able to see the views of the human rights commissioner, was most telling. The last but one sentence was a message to all of us from the commissioner:
“it is now essential that Members of Parliament and Peers prevent legislation that is incompatible with the UK’s international obligations being passed”.
That is the chilling message for us.
I heard earlier about the impact on the rule of law and the way in which these matters will be interpreted by those who look at the reputation of the United  Kingdom. I noted the words of the noble Lord, Lord Hannay, in the previous debate. The implications for how people will look at this country seem not yet to have been considered.
The fact that all the provisions in the Bill will have to be read in line with this clause means that it has profound cross-cutting detrimental implications for human rights. Parliament is here as the supreme lawmaker in the United Kingdom, yet this Bill hands broad lawmaking powers, which implicate fundamental human rights, to the UK Government in the form of delegated powers and explicit shifts of power. Our democracy depends on there being a clear separation of powers, and this Illegal Migration Bill represents an attempt at a power shift which enables the UK Government to play the roles of all three branches of state: lawmaker, adjudicator and administrator. In undermining the separation of powers in this way, both the UK’s constitution and our democracy is diminished.
Clause 1 is an extreme assault on the ability of people to have a fair hearing in the UK. The rule of law is essential, and undermining that will upset the influence we have as a country across the globe. The stated purposes, as I outlined at the beginning of the speech, to detain people and send them away from the United Kingdom without having their cases heard, will undoubtedly be debated further in the clauses that are to follow. However, it makes me feel very sad that, at this point, this clause, which lays out in such detail the purpose of the Bill, is one that runs so counter to the principles we uphold as a nation.

Baroness Chakrabarti: My Lords, it is a pleasure to follow the noble Lord, Lord German. In arguing for Amendment 4, I have already suggested why I think Clause 1 should be replaced by a clear commitment to key international obligations and a requirement that the Bill be read accordingly by officials, Ministers and the courts. However, whether or not noble Lords eventually agree with Amendment 4 down the road, Clause 1 in its current form must not stand part.
The noble Viscount, Lord Hailsham, who is no longer in his place, rather smelled the rat earlier. Clause 1 is not some innocuous attempt to repeat the Long Title and extrapolate it into the body of the Bill. Instead, it is a direction to the courts to ignore international obligations in favour of the Executive’s purposes—they are executive purposes because we are part of Parliament and we have not finished with the Bill yet. Ignoring international obligations was the subject of so much of the earlier proceedings of the Committee and I do not think anybody put the problem with that better than the noble Lord, Lord Patten, with his peanut analogy, to which I am sure many people will return for a very long time.
The noble and learned Lord, Lord Hope of Craighead, rather nailed it, if I may say so, by pointing to the particularly perverse nature of subsection (3). Language once crafted by the great Sir Edward Caldwell, the former First Parliamentary Counsel, for the purpose of ensuring human rights compatible interpretation via Section 3 of the Human Rights Act is now being appropriated—or, to use the eloquent language of the  noble Baroness, Lady Lawlor, subverted—for the purposes of ensuring that human rights are violated. For those reasons alone, Clause 1 should not stand part.

Lord Hope of Craighead: My Lords, I would like to come back to the points I raised in the first group, because they are the basis for my support for the argument presented by the noble Lord, Lord German. I agree with very much of what he said.
I have two points. The first is why we have to have Clause 1(1) in the Bill at all. As the Minister explained, nothing hangs on “unlawful” or “illegal”. They are tendentious words and I find it uneasy to know what they mean unless they are properly defined. The Minister was not prepared to give me a definition which tied them down to what is in the Bill. I do not see why he is not prepared to do that. His answer was one which I think any parliamentary draftsman would give him, which is that nothing hangs on them because the words do not reappear elsewhere—but that does not remove the need for a definition.
The other point comes back to what the noble Baroness, Lady Chakrabarti, has been saying about the combination of subsections (3) and (5). I find them really quite sinister. During the passage of the REUL Bill, we debated the need for parliamentary scrutiny in the face of an aggression by the Executive to reform the whole body of retained EU law without parliamentary scrutiny. Here we are again: the Executive assuming to themselves control over the convention without recourse to the courts. Indeed, there are other provisions in the Bill which exclude any kind of judicial scrutiny at all. That is taking matters a very long way and setting an uneasy precedent.
I would much rather this whole clause was taken out for these reasons. They give rise to real concerns about where this country is going, and indeed where legislation of this kind is going, in the future.

Lord Hannay of Chiswick: My Lords, I wonder whether I could come back to some of the questions the noble Lord failed to answer after the first debate, perhaps understandably in the desire to have a dinner break. Perhaps now he could apply himself to some of those questions.
First, could he please tell me which part of the refugee convention explicitly authorises a country to refuse to even hear the asylum request of a person who arrives on its shore? I would like to hear which bit of the convention says that that is a legitimate thing to do. The answer is not, I am afraid, to go into this rigamarole about returning to the first country they were in.
Secondly, the noble Lord said that nothing in the Bill requires the Government to take action contrary to our international legal obligations, but does he not agree that large parts of the Bill empower the Government, without further recourse to Parliament, to act contrary to our legal obligations? I would be grateful for an answer on that point too.

Lord Paddick: My Lords, my noble friend Lord German has clearly set out why Clause 1 should not be stand part of the Bill, supported by, among others, the noble Baroness, Lady Chakrabarti.
The Bill is about depriving a particular group of people of their human rights. That is disgraceful. The impact assessments provided by NGOs that my noble friend cited show that the operation of the Bill will be hugely expensive and create a permanent underclass, unable to work and dependent on the state.
I asked the Minister at Second Reading, and I ask him again: when will this Committee receive the Government’s impact assessment? I am not talking about the equality impact assessment; I am talking about the financial impact assessment. Or do the Government consider that an impact assessment is unnecessary because they agree with the impact assessments that we have been provided with by NGOs? The noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Hannay of Chiswick, both highlighted the questions that they asked on the previous group, to which the Minister did not provide a satisfactory answer. Perhaps he will take the opportunity to answer those questions now.

Lord Coaker: My Lords, I will just add my voice to the requests from various noble Lords across the Chamber for specific answers to these specific questions that have been raised; I think the Committee deserves those answers.

Lord Murray of Blidworth: My Lords, Clause 1 sets out the Bill’s overarching purpose and provides an overview of the provisions in the Bill. The purpose of the Bill is to prevent and deter illegal migration and, in particular, migration to the UK by unsafe and illegal routes, by requiring the removal from the UK of individuals who arrive in breach of immigration control.
Subsection (2) then summarises the key provisions of the Bill that advance this core purpose, including the duty on the Secretary of State to make arrangements for the removal of persons from the UK who meet the conditions in Clause 2.
The numbers arriving on small boats in 2022 exceeded 45,700, and, as I set out at Second Reading, the Bill is essential to deal with these illegal, dangerous and unnecessary channel crossings. Putting the purpose of the Bill front and centre, right at the start of the Bill, will make it abundantly clear to all, including the illegal entrants themselves, NGOs, the courts and others, what Parliament’s intent is in enacting this Bill. As subsection (3) provides, the subsequent provisions in the Bill should be interpreted by the courts and others in line with this statutory purpose. Again, it is incredibly helpful to make this explicit on the face of the Bill, although I should add that subsection (3) simply reaffirms the established principle that the courts and others should interpret the Bill to deliver its purpose.
To assist this purpose, Clause 1 also disapplies Section 3 of the Human Rights Act 1998. As I have already explained in the previous debate, the disapplication of Section 3 will ensure that the Bill’s provisions will be interpreted to meet the legislative intent of Parliament, rather than strained interpretations by the courts to achieve compatibility with convention rights.
The noble Lords, Lord German and Lord Paddick, asked about the impact assessment. We have already published an equality impact assessment and will publish  an economic impact assessment in due course. The noble Lord, Lord German, referred to the purported impact assessment published by the Refugee Council. We do not recognise the assumptions and costs referenced in that document. Any assessment of the impact of the Bill must also acknowledge the cost of not proceeding with it. Our broken asylum system is costing this country £3 billion a year, and over £6 million a day in hotel costs. This cannot continue. The noble Lord also seems to be labouring under an assumption that Clause 1—

Lord German: The noble Lord has made two points. I am particularly asking about this sentence in the Government’s ECHR memorandum—so the Government’s position. It says at paragraph 1.5 about the removal of Section 3 of the Human Rights Act:
“This does not affect the Government’s assessment of compatibility of the Bill with the Convention rights”.
Article 5 of the convention clearly states:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court”.
So is the paragraph in the memorandum compatible with what I have just read out? If so, it means that when people are detained, they will be able to take their cases to a court in this country.

Lord Murray of Blidworth: The answer to the question, if I have understood the noble Lord, is yes, but I think he misinterprets the purpose of Section 3 of the Human Rights Act. It is not the clause by which the articles of the European Convention on Human Rights are reflected in UK domestic law. Section 3 of the Human Rights Act invites a court to construe parts of other domestic statutes or secondary legislation compatibly with convention rights. It does not mean that this is the mechanism by which convention rights are actionable in UK law, which is the standpoint that I think the noble Lord, Lord German, appears to suggest is the basis for his point. I fear that, as a matter of legal analysis, I think that to be wrong.
The noble Lord also seems to be labouring under an assumption that Clause 1 somehow upsets the separation of powers. It does not. It simply makes it clear that in interpreting this legislation, judges should seek to advance the purposes of the Bill. The Bill, and actions taken under it, are still clearly capable of review in the courts, and individuals can seek to prevent their own removal by making a suspensive claim. So, the courts are still involved, and regulations are still subject to approval by Parliament. I hope the noble Lord can rest assured that on closer inspection, this Bill leaves our separation of powers undisturbed.
I also want to pick up on a point made by the noble and learned Lord, Lord Hope, who suggested that the Bill prevents human rights challenges. This is simply not the case. The Bill provides for two kinds of challenges that would have the effect of suspending removal. Other legal challenges, whether on European Convention on Human Rights grounds or other grounds, are not precluded, but they do not suspend removal. As I have indicated, Clause 1 makes the purpose of the Bill crystal clear for all to see. This will help to guide all decisions made by officials and immigration officers, Ministers, the courts and others in giving effect to the Bill. I commend the clause to the Committee.

Baroness Butler-Sloss: My Lords, I wonder whether the Minister can help me on this. The “strained decisions” of the courts is a phrase that has been used at least three or four times this evening. As a former judge, I find that difficult to understand. I would like some elucidation as to what is meant by “strained decisions” and what examples there are.

Lord Murray of Blidworth: The context of a strained decision, as the noble and learned Baroness will be aware, are circumstances where there is an ordinary, natural reading of a statute but a judge feels constrained to interpret the words of a statute in a particular way to give effect to a convention right. As the noble and learned Baroness is aware, this is a fairly obvious application of the term, and it is quite usual for such—perhaps more difficult—interpretations to be described as “strained”. I can certainly identify a number of examples, and I will write to the noble and learned Baroness in relation to them.

Lord Hannay of Chiswick: My Lords, the Minister is a persistent non-answerer of questions; I am a persistent asker of questions. The two questions I asked—I will repeat them at dictation speed if he wishes—were echoed by the Liberal Democrat Front Bench spokesman and the Labour Front Bench spokesman. I think we are due a reply to both those questions. Does the Minister have the answers, or do I have to repeat the questions?

Lord Murray of Blidworth: The noble Lord does repeatedly ask questions, and I repeatedly answer them. As he identifies, there is a difference in interpretation of Article 31 of the refugee convention. I entirely appreciate that he does not accept my interpretation; and I do not accept his. That is where we are. It is not a rigmarole. This is a matter of position and legal analysis, and I am afraid that this is the Government’s position.

Lord Hannay of Chiswick: And the second question, please?

Lord Murray of Blidworth: I believe I have answered both the noble Lord’s questions.

Lord Hannay of Chiswick: The second question was: could the Minister please tell us that the phrase that he used, which was that nothing in this Bill “requires” the Government to take action contrary to our international obligations, does not obviate the fact that the Bill enables the Government so to do if they so wish and without any further recourse to Parliament?

Lord Murray of Blidworth: That is consistent with the normal practice in statute.

Lord Hope of Craighead: My Lords, perhaps I might come back to the question asked by the noble and learned Baroness, Lady Butler-Sloss. I think the Minister said that he would write to her with examples of strained interpretation. I sat for many years on the  Appellate Committee in the Supreme Court dealing with cases under the Human Rights Act, and I am not aware of any particular case where I was straining the language. I do not think I went very far beyond the ordinary meaning of the words.
I remember we were faced with a very difficult case involving two men who wanted to marry. In those days, the Marriage Act was very specific that marriage was between a man and a woman. We could have strained the language, but we did not do that; we said the provision was incompatible, which I think the Minister would recognise as a perfectly orthodox way to proceed. I think we were quite careful not to stray beyond the bounds of reasonable interpretation. I would be very interested to know whether he has examples of where we really did go beyond the bounds of reasonable interpretation.

Lord Murray of Blidworth: As I said, I will be writing to the noble and learned Baroness, but the House will recall that the noble Lord, Lord Wolfson, set out various examples, including Ullah and Al-Skeini, and there are others. This has been a matter of jurisprudential development since the commencement of the Human Rights Act. It is a well-known evolution in interpretive principle, and it is that which is addressed by the provisions in this Bill.

Lord Paddick: Following-up on my question about impact assessment, the Minister says that the Government do not recognise the impact assessments provided by NGOs, but why not? How can they say that they do not recognise the impact assessments provided by NGOs when they do not have their own impact assessment with which to contradict them?
The Minister also talked about the cost of not enacting this legislation, in terms of the current cost of what I think he called the “broken asylum system”—of a Government who have been in power for 13 years. To what extent is the high cost of accommodating asylum seekers in the UK down to the fact that there is a huge backlog of applications that have not been processed by the Home Office, when some 15 years ago there were almost double the number of applications and hardly any backlog?

Lord Murray of Blidworth: The Government do not recognise the figures in the purported impact assessments provided by the bodies that were referred to, such as the Refugee Council, because we do not recognise the assumptions and costs referenced in them. Furthermore, those documents do not acknowledge any assessment of the impact of the effect of not proceeding with the measures in the Bill.

Lord German: What is the Minister’s definition of “soon”, which he said was when we would receive the impact assessment? Will it be before the end of Committee, before the start of Report or after Report and before Third Reading? Perhaps he could be more explicit.

Lord Murray of Blidworth: The impact assessment will be provided when the decision is taken that it is appropriate to disclose it.

Noble Lords: Oh!

Lord German: Does the Minister therefore think that it is appropriate that the body which is deciding about this Bill—Parliament—should receive the impact assessment, and should that impact assessment be with us before we complete Committee on the Bill? Surely that is appropriate. It is not for the Government to decide. It is for the Government to make their case to Parliament. If they cannot do so, because they have not got the document, because the document is not sufficiently robust or because it is not available, then the Minister should be able to tell us that right now, so that we know the basis on which we are judging this Bill.

Lord Murray of Blidworth: I am afraid that I can tell the noble Lord only that it will be published in due course and that this is entirely normal.

Lord Coaker: Frankly, this is unacceptable. Without being rude, I say that the Committee must at some point have the impact assessment. How on earth can we make many of the judgments on amendments and on the various things that we may wish to come forward with on Report if we do not have an impact assessment? It is normal practice for an impact assessment to be provided so that proper decisions can be made. Can the Minister at least go back to the department and say that this Chamber—I think I speak for everyone —is very unhappy that no impact assessment is due, and that we need one? Will he ask his department to provide one for us—at least well before Report?

Baroness Lister of Burtersett: To add to that, we should have had a child rights impact assessment. That is supposed to be done right at the outset of the policy discussion. Therefore, it would have been appropriate for it to have been published at the same time as the Bill.

Lord Murray of Blidworth: The House knows my position. I have obviously heard what the noble Lord, Lord Coaker, and the noble Baroness, Lady Lister, have said, and I will of course take those points back to the department.
Clause 1 agreed.

  
Clause 2: Duty to make arrangements for removal
  

Amendment 5 not moved.

Amendment 6

Lord Carlile of Berriew: Moved by Lord Carlile of Berriew
6: Clause 2, page 3, line 26, leave out “7 March 2023” and insert “the date on which this section comes into force”Member's explanatory statementThis amendment ensures the duty to deport in Clause 2 does not apply retrospectively to those who entered or arrived in the United Kingdom before the Bill comes into force.

Lord Carlile of Berriew: My Lords, I beg to move Amendment 6, which stands in my name. There are some other amendments associated with it. I am  very grateful to the noble Baronesses, Lady Hamwee and Lady Chakrabarti, and my noble and learned friend Lord Etherton for putting their names to Amendment 6. I am also grateful to the many well-known organisations that have made representations on these matters, including Justice and a number of others; some of them will recognise their views in what I am about to say.
These amendments are about a tension between what is fair and proportionate and what is unfair and disproportionate. Despite the fact that all those who have signed this amendment are lawyers, I do not use those terms in a narrow legal sense but as ordinary language, which I invite your Lordships to use as the template for your judgment.
I suggest that the Government are attempting to negate the legality of the exercise of rights permitted by UK law long after those rights have been exercised, and that to do so is unfair and disproportionate. We had a little discussion about strangeness in judgments that were allegedly made. In relation to these amendments, the only organisation that is doing something strange is the Government, because they are doing something that is very unusual and that falls straight into the literal definition of strange, although it is not unprecedented. The whole issue is about proportionality, as I have said, and Governments unfortunately do strange things fairly often.
These amendments deal with parts of the Bill that are retrospective in effect. Retrospectivity is contrary to the legal certainty of which we are proud and other principles that underpin our law. The amendments deal with Clauses 2, 4, 5, 15 and 21. Clause 2(3) means that the duty to deport would apply to an individual who entered or arrived in the United Kingdom on or after 7 March this year. The normal course of events is that a Bill comes into force when it is passed—at that moment when we hear that it has had Royal Assent and has gone through any other provisions contained in it as to when it comes into force. But this one is retrospective.
Clause 4(7) would disapply asylum or human rights claims which were made on or after 7 March 2023 but were simply awaiting a decision. There you are, awaiting a decision and, suddenly, the possibility of a decision is simply removed from you by the diktat of government.
Clause 5(12) and (14) would extend the removal provisions applied to those who had made an asylum or human rights claim on or after 7 March 2023 but were awaiting a decision. Clause 15(4) would give the Home Secretary retrospective power over the accommodation of unaccompanied migrant children—a very dramatic piece of retrospectivity.
Clause 21(8) to (10) would allow the Home Secretary retrospectively to revoke limited relief to remain, granted lawfully, to victims of modern slavery and human trafficking, thereby undermining commitments made by Theresa May—she was referred to earlier—when she was Prime Minister. They were very carefully considered, and rightly much vaunted, provisions to protect people from modern slavery and human trafficking.
I think we have already heard today, and I have certainly heard it at other times, that the modern slavery provisions have been abused. Yes, to an extent they have, but I would challenge anyone who has experience in the law  to find any provision of a comparable nature that has not been abused and misused. That is what courts are there for: to deal with the misuse and abuse of such provisions.
The point about legal certainty is that it requires that individuals know what their rights are and how they can be implemented and enforced. This is especially important at a time when, as we have heard repeatedly from the Minister, the Government have decided that the UK’s international law obligations are dispensable and that the fundamental rights of individuals can be cast aside. The importance of legal certainty, and having very rare retrospectivity in our legal system and our common-law traditions, has been stressed repeatedly by the senior courts.
Those of us who have practised in the courts and the senior courts could tell your Lordships in detail what those judgments were. I have the references here if noble Lords are interested in them, but it is 9 pm so I will spare noble Lords those for the time being. We will have to wait and see what the Minister says because his punishment may be being reminded of, for example, the Oxford Shrieval lecture given by the noble and learned Lord, Lord Mance, in 2011, which in fact was a very wise piece of didactic learning that was carried through to the courts.
Retrospective law can itself be a breach of an individual’s right to a fair trial under Article 8 of the European Convention on Human Rights. I am not simply putting forward my own argument; I could quote to your Lordships specific cases in which that was held. It is not only the courts. Maybe we think we are superior to the courts in your Lordships’ House, so perhaps I should tell your Lordships that on two occasions—in 2013 and 2022—the House of Lords Constitution Committee has raised concerns about retrospective legislation.
The conclusion one draws is that the legal requirements are that retrospectivity should be used only when there are compelling grounds in the general interest that the law should be clear and accessible and, most recently, that retrospective legislation should be passed only in very exceptional circumstances. I challenge the Minister to tell your Lordships what are the very exceptional circumstances that permit retrospectivity in relation to Clauses 2, 3, 5, 15 and 21. No compelling justification was provided by either the Home Secretary or the Immigration Minister during the stages of this Bill in another place.
We were reminded earlier that the Nationality and Borders Act was passed less than a year ago in 2022 and had the intention of addressing the same policy issue. But that provision was not predominantly retrospective —it was not really retrospective in any significant sense—and it is therefore unclear why a Bill dealing with the same issues, as we heard from the Minister a few minutes ago, requires retrospectivity.
Furthermore, there is no evidence whatever that the date on which immigration legislation comes into force has any impact on the number of small boat crossings in the English Channel. The number of channel crossings actually rose following the Nationality and Borders Act, and—let us make a real argumentum ad maiorem  to the newspapers—the media have made it clear that nothing done by the Government has had any significant effect on boats crossing the channel.
This situation does not justify such broad and sweeping legislation, which seeks to apply penalties to those who cross the channel to claim asylum, being retrospective in its entirety. It is also extraordinary that the Government are seeking to apply the retrospective provisions to the Home Secretary’s powers over unaccompanied migrant children and the ability to retroactively cancel limited leave to remain granted to victims of modern slavery and human trafficking. I am trying not to take up too much time, but this is therefore a completely unacceptable precedent and falls on the disproportionality side of the question I asked your Lordships’ Committee earlier.

Baroness Chakrabarti: I heap plaudits on the shoulders of the noble Lord, Lord Carlile of Berriew. That was worthy of a legal lecture. I hope the noble Lord, Lord Wolfson, caught his plane, but that was a common-sense lesson in the law spoken with a great deal of humility. I will not call it a lecture because it was too humble and too articulate for that. I associate myself with all those remarks. I have signed only some of the amendments, but I am happy to endorse all the amendments that are against retrospection in the Bill. Our position on retrospection comes from common decency, common sense and common law before we get anywhere near ECHR obligations and other international obligations. Do not change the rules after the game has begun.
I notice that the noble Lord, Lord Hodgson of Astley Abbotts, is back in his place. He is a great one for the Clapham omnibus. I think this idea of changing the rules half way through the game is something that anyone on the Clapham omnibus or any lay person anywhere in our country would completely understand, and that is why all the amendments tabled by the noble Lord, Lord Carlile, are so important. It is profoundly unfair to say to people who are already in this country, who have already come to claim asylum, whether they will eventually succeed in their claims or not, should be subject to this new, punitive, retrospective regime.
The noble Lord, Lord Carlile, is clear and articulate, but he is also forensic because there are some extreme situations in which retrospection is permissible and even I would support retrospection. The famous one is marital rape. We know that once upon a time in our country it was not considered rape for a man to rape his wife. That position was changed in the courts in relation to a particular case. This had been brewing for some time. People thought the law was out of step with contemporary views on equal treatment of women and what is acceptable even within marriage. That was changed in a single case in which a man was successfully prosecuted for raping his wife. He took his claim all the way to the European Court of Human Rights in Strasbourg, and the court said no, this rape is so profoundly contrary to our international accepted norms that in this case we will accept that retrospection did not offend the common decency principle that you should not punish people retrospectively.
That is the kind of case we are talking about, in which it is acceptable to do that—not in this context. These are very vulnerable, desperate people. Whatever  the views of noble Lords in this Committee about the acceptability of this regime, and we will disagree about that, in my view and that of many Members, as we have heard today, applying this to people who came here in good faith, and in many cases in desperation, on the understanding that the refugee convention would be applied in one way, is punitive and discriminatory, contrary to the convention. Retrospection adds insult to injury. I hope the Committee will not accept it and will instead support all the amendments that deal with retrospection in the name of the noble Lord, Lord Carlile of Berriew.

Baroness Hamwee: My Lords, I am glad to have been able to add my name to the noble Lord’s amendments. I am grateful to him for introducing them so clearly. I am conscious that my name is among those of noted advocates in different contexts.
We are already in an Alice in Wonderland—although I am not sure it is really a wonderland—world, where we are told that asylum seekers will know enough about UK restrictions and provisions to be deterred from trying to get here. I do not recognise that proposition. Added to that is the idea that people who are already here should have known what is in the Bill even before most MPs had an opportunity to pick up a copy of it.
The noble Lord referred to legislation coming into effect when it gets Royal Assent. Yes, of course it does, but very often—almost invariably—in a limited way. Some clauses come into effect, usually the jurisdiction and that type of thing, but many of the provisions and most of the legislation that we deal with have to wait for secondary legislation: that is, the provisions that implement what is in the primary legislation.
I absolutely agree with what has been said about certainty, clarity, predictability and so on. This Bill displays a casual attitude, which goes against not only legal principles but, as I think has been said, common decency. If I were to ask the Minister what is so compelling about the Bill that it should be an exception to all this, I have no doubt that I would be told, “We’ve got to stop the boats”.
As the noble Lord just said, the Nationality and Borders Bill—now Act—had the same policy objective, yet the channel crossings kept on rising and they have gone on rising. If I wanted evidence that retrospectivity had an effect in practical terms, I would have expected to find that they had come down in number since 7 March—but they have not.
I have two amendments in this group; my noble friend Lady Bakewell of Hardington Mandeville also has her name to the first of these, Amendment 9, which proposes to leave out Clause 2(7). Subsection (7) provides that
“limited leave to enter or remain given”
to an unaccompanied child “is to be disregarded”. It says, in effect that, for the purposes of Clause 3(1), we are to disregard what has already happened. It is another bit of retrospectivity. What use is the leave that is referred to in Clause 2(7)? To disregard it is unprincipled. Such leave should be taken into account in determining whether a child has leave to enter or remain; the Government have given it.
I will raise a point that the noble Baroness, Lady Finlay, the noble and learned Baroness, Lady Butler-Sloss, and myself, were discussing during the dinner break—it justifies our having had a dinner break, I think—and that is the question of adoption. I have not seen the comment made by the Children’s Commissioner, which no doubt the noble Baroness, Lady Finlay, will talk about, but I understand it suggests that, in the case of a child who has been adopted, and who falls within the provisions of the Bill as currently set out, that adoption in some way could be undone, despite the fact that the child has become a member of a British family.
I would have thought that the four conditions would not have been met, but we must be absolutely clear about this. If someone with the credentials of the Children’s Commissioner suggests that there is an issue here, we must have an absolutely clear statement from the Dispatch Box that that is not so and, preferably, an amendment from the Government making it clear that it is not so.
Finally—well, not quite finally, actually—Amendment 10 concerns the basic principle that someone affected by a decision should know what that decision is and why it has been made. The amendment provides that someone who meets the conditions for removal must be notified and given details of the evidence on which the Secretary of State has relied. If the Government are not prepared to agree the amendment as tabled, what does the Home Office have in mind to meet these requirements? After all, they must be met. An explanation of why such steps as these are being taken is an absolute sine qua non, and I hope the Home Office understands that.
Amendment 11 is about the position of victims of trafficking and so on giving evidence. Of course, all that can be done to crack down on the criminality of smugglers who exploit asylum seekers in any way must be done, but co-operation with the police and prosecutors, which is the subject of the amendment, can be very difficult for the victims—this is not the first time that I have mentioned this in your Lordships’ House—and, of course, not only victims of trafficking and slavery.
If one thinks about the experiences that have been endured and the inevitable suspicion of, or at least unease with, authority figures that must be in the minds of so many victims in that position, one can understand that it is not a quick or easy process. Add to that the experiences that have affected them, many of them very significantly, and co-operation may—and, I suggest, often will—take time and considerable support.
I would always say that it is necessary to be in the UK to give that co-operation. Giving evidence from outside the UK is very difficult. I believe that it is difficult for the police and prosecution as well, and almost by definition there is no support for the victim—the witness, if you like—in this situation. I suppose my question to the Minister is: would the individual be allowed to return to give evidence in a trial, or before that to make a statement?

Baroness Finlay of Llandaff: My Lords, I am grateful to the noble Baroness, Lady Hamwee, for having run a trailer for the question that I asked at a very helpful meeting that was arranged with the Children’s Commissioner.
Many of those coming here at the moment—apparently about 5%—are girls. They are generally in a much poorer state than the young men and boys, and many have been sexually assaulted or raped. I ask the Minister to be quite specific about this: in the event that one of these girls is pregnant and she decides either to give up the child for adoption or to keep the child herself, or in the event that she dies in childbirth either in this country or following deportation to Rwanda, and that child is then orphaned either in this country or in Rwanda, and that child is given up for adoption in this country, what is the status of that child? Would the child be at risk of being deported at the age of 18?
And what is the status of that child’s children, given that the child will have arrived in this country in utero, with no form of permission to come here, but would have had no choice in the process, and what is the position of the adopted parents? In the event that the child is not adopted but has been in foster care up until the age of 18, what is the status of that child? Can there be any retrospection applied to the ability of that child, who will have been completely brought up here, gone through schooling and had career prospects created in this country, simply because that baby arrived in utero?

Baroness Suttie: My Lords, I will speak to Amendment 12, tabled by the noble Baroness, Lady Ritchie of Downpatrick, to which I have added my name. A very similar amendment was tabled in the House of Commons by my honourable friend Stephen Farry MP. Unfortunately, the noble Baroness, Lady Ritchie, is unable to be present this evening, as she is in Brussels on a delegation, so she has asked me to speak to the amendment in her absence.
As the Minister knows, we had a debate along very similar lines yesterday evening on a regret Motion on the requirement for an electronic travel authorisation and the potential impact on tourism in Northern Ireland. Amendment 12 is primarily a probing amendment that would seek to exempt from Clause 2 of the Bill people crossing the border from the Republic of Ireland to Northern Ireland. I will highlight two particular concerns about Clause 2, as it affects the land border on the island of Ireland.
The first is the enforcement of the provisions contained under Clause 2. The issue of who decides whom to check and on what basis, given that routine immigration checks across the land border on the island of Ireland do not happen, is an area of very grave concern. Maintaining the freedom to travel north-south without restrictions remains a key element of the peace process, and any changes to this could constitute a breach of the Good Friday/Belfast agreement. The Government have confirmed—and it was reconfirmed last night by the Minister—that Irish citizens will be exempt from the need to apply for an ETA when travelling to Northern Ireland. However, there remains a considerable amount of legal ambiguity for residents in the Republic of Ireland who come from a third country whose citizens currently require a visa to enter the UK and therefore Northern Ireland.
During the debate on this issue in the House of Commons, examples were raised about the impact of Clause 2 on individuals legally resident in Ireland who  cross the land border from Ireland to Northern Ireland, perhaps to visit friends or to go shopping, but who have not applied for an ETA. During the debate yesterday evening on the introduction of an ETA, the Minister—the noble Lord, Lord Murray—said that,
“those who are legally resident in Ireland may instead, if required by a UK immigration official, present physical evidence that demonstrates their legal residence in Ireland”.
He added that the Home Office would publish guidance in July on what would be considered as acceptable evidence. Therefore, following his statement yesterday, will the Minister tell us what the consultation process will be in advance of publishing this guidance? Will there be an information campaign to ensure that people are aware of these requirements? He will, I hope, be aware of the sensitivities of requiring people to carry official documentation when there is supposed to be unrestricted north-south travel.
During yesterday evening’s debate, the Minister said that
“prosecutions for illegal entry offences will focus on egregious cases and not accidental errors”.—[Official Report, 23/5/23, col. 836.]
Can he say whether it is the Government’s intention to publish guidance on what is likely to be defined as an egregious case? Perhaps most importantly, what assurances can he give that random checks by UK immigration officials will not result in the creation of a border on the island of Ireland by stealth?
My second area of concern is the potential risk of racial profiling resulting from these random checks. Migrant-led organisations such as the North West Migrants Forum have been raising concerns about the impact of visa requirements on the land border on the island of Ireland. They have highlighted the disproportionate impacts on black and minority ethnic, and migrant, people. Clause 2 risks exacerbating these issues and further hardening the border on the island of Ireland for some communities. The Minister will know that, in response to these concerns, Alyson Kilpatrick, the chief commissioner of the Northern Ireland Human Rights Commission, has called for all journeys into Northern Ireland originating from Ireland to be exempt from the ETA provisions in the Bill. Can the Minister say what measures will be put in place to prevent racial profiling as a result of random checks and, in particular, what steps the Home Office will take to ensure proper training of UK immigration staff in monitoring these random checks?
Finally, can the Minister clarify whether non-visa nationals entering Northern Ireland and the UK from the Republic of Ireland without an ETA will impact the validity of deemed leave, as set out under Article 4 of the Immigration (Control of Entry through Republic of Ireland) Order 1972? If he does not know the answer to that one immediately, I will be happy to receive a letter if it could be placed in the Library.

Baroness Butler-Sloss: My Lords, I ought to apologise to the Committee. I failed to say that I was unable to speak at Second Reading; I listened to a great deal of it, but I had a commitment that I could not avoid. I also should have announced earlier that I am co-chair of the All-Party Parliamentary Group on Human Trafficking and Modern Slavery and a vice-chairman of the Human Trafficking Foundation.
I totally support Amendment 6. The retrospective effect is shocking but it has been dealt with by other people, so I will move to two other amendments that I am very anxious to say something about.
There is a mantra about the best interests of children. It has, rightly, been followed throughout the United Kingdom for many years. It originates in the UN Convention on the Rights of the Child, as has already been referred to. It is also incorporated in the Children Act 1989, in which I was very much involved. Consequently, the clauses in the Bill—not just the one with which we are dealing, Clause 2—are utterly shocking in their derogation from the best rights of the child.
It is truly worrying that this is happening. Clause 2 specifically includes, of course, children and the ability to remove them. Part of Clause 2 includes the possibility of children not being included, but it leaves it to the Secretary of State as to when to exercise that discretion. I am extremely concerned about this. It is not only in Clause 2; it arises in other clauses which I will speak about later, so I will not refer to them now.
The other two proposals that I am concerned about are dealt with in Amendments 9 and 11. I very much support Amendment 9, for the obvious reasons of its connection with children. Indeed, what has been proposed by the noble Baronesses, Lady Hamwee and Lady Bakewell, about Clause 2, at page 3 on line 39, is replicated later in an amendment that I have put down.
I am also very concerned about Amendment 11. If one just thinks with a bit of reality about the Bill, one really important thing which is utterly underused is the prosecution of the perpetrators—not the people smugglers but the trafficking smugglers who are bringing in people for wicked purposes. If you are going to require a person who has been abused or exploited by a trafficker to go to Rwanda, and to give evidence from Rwanda, who on earth in their senses will be bothered to give evidence to help a prosecution in England if they are stuck in Rwanda? It is just not feasible.
It will have two major effects. First, we will not get the prosecutions because we will not have the witnesses. It is essential that we prosecute the perpetrators. It is an aspect of human trafficking and modern slavery that there are prosecutions, and there are not enough. Secondly, the person being trafficked is not going to come forward to say they have been trafficked if they are told by the perpetrators, their exploiters, that if they go forward and tell the police what has happened, they will be immediately deported to Rwanda or somewhere else. This is going to have a disastrous effect on the already far too small number of prosecutions in this country. It is crucial that we establish the ability to stop the perpetrators from their evil deeds.

Lord Kerr of Kinlochard: The noble and learned Baroness makes a very strong case and I give her my full support.
My name is on Amendments 80 and 91 in this group. Amendment 91 is concerned with victims of human trafficking, but both fall at the hurdle of retrospection, as has been explained by the other signatories, in  particular, my noble friend Lord Carlile, and by the noble Baronesses, Lady Chakrabarti and Lady Hamwee. I have the luxury of being able to add virtually nothing to the arguments already made.
I think the best description of the case against retrospection is in my noble and learned friend Lord Hope’s explanation of Amendment 39, which
“seeks to give effect to the principle that, unless for good reason, legislation should operate prospectively and not retrospectively”.
What is the conceivable good reason? What are the very exceptional circumstances that the Constitution Committee suggested might excuse retrospection?
The noble Baroness, Lady Hamwee, suggested that the Minister might try to say that stopping the boats is so exceptional as to justify retrospection. But there are a lot of other ways of dealing with that; for example, the safe passage visa argued for at Amendment 130. The Minister might say that that it is the cost of housing those who have come across the channel or in the back of a lorry and have been apprehended. But the costs of detaining and deporting those declared inadmissible under this Bill will be much higher.
That is the point the Refugee Council made in its impact assessment and estimate of the costs. It estimated a cost of £9 billion over the first three years. The Minister says that he does not recognise those numbers. That is not a sufficient argument. He needs to tell us what is wrong with those numbers and what his numbers are. It is not good enough just to sit there and say, “Well, I’m not going to engage in this debate because I don’t recognise the numbers”. I think retrospection is fundamentally unacceptable.
A few years ago, when I was driving up Headington Hill in Oxford, I forgot that, eccentrically, the set speed limit there is 20 miles per hour. I was required to present myself in Milton Keynes four months later for a speed awareness course, because I had been travelling at 27 miles per hour. Eccentrically, because I am a very eccentric person, I failed to ask my wife to see whether I could have a personal course. Nevertheless, I would have been very taken aback if, when I got to Milton Keynes—it was extremely hard to find the place and I was driving rather fast trying to find it—I had been told on arrival, “Actually, we have changed the penalty and we are going to export you to Rwanda”. I would have objected, and I object to retrospection.

Baroness Lister of Burtersett: My Lords, I agree with everything that has been said so far, but I will focus on the opposition to Clause 2 standing part of the Bill. This clause is, in many ways, the nub of the asylum ban to which the Bill gives effect. To place a duty on the Home Secretary to remove virtually all those who seek asylum through irregular routes is an unprecedented step going far beyond simply giving her the power to do so. Here we are talking about those arriving not only by boats but by any irregular route; the boats are used as a justification for the Bill, because the Government know that we all want to see an end to those very unsafe journeys. The fact that it is a power only when it comes to children is a small mercy, given that they will be removed when they reach the age of 18. However, I will leave the treatment of children to a later debate, because there is still a lot to be said about the impact on children.
Calling those affected “illegal migrants” does not alter the fact that the majority are exercising their right in international law to seek asylum. That goes back to the point that the right reverend Prelate the Bishop of Chelmsford made earlier. In the words of the UN rapporteurs that I quoted earlier,
“the act of seeking asylum is always legal, and effective access to territory is an essential precondition for exercising the right to seek asylum”.
When she first introduced the Bill, the Home Secretary accused critics of naivety in suggesting that
“everybody coming here on a boat is a genuine asylum seeker fleeing for humanitarian reasons. The reality is that many of these people are economic migrants who are abusing our asylum system, and that is what this Bill aims to stop”.—[Official Report, Commons, 7/3/23; col. 174.]
Could the Minister give us the evidence on which that assertion is based? It has been reported that the Home Office does not have that evidence, but, if it does, now is the opportunity to provide it.
No one is suggesting that everyone who comes here on a small boat has a genuine case for asylum, but we know that the majority are likely to have such a case. According to the Refugee Council’s analysis of official data, six out of 10 of those who crossed the channel in small boats last year stood to be recognised as refugees—yet they will no longer be able to make their case.
The Home Secretary has argued that the Bill’s critics
“ignore the fact that our policy does in fact guarantee humanitarian protection for those who genuinely need it”.—[Official Report, Commons, 13/3/23; col. 576.]
However, many of those whom she has given herself a duty to remove will genuinely need humanitarian protection. Yet there will be no mechanism for ascertaining whether that is the case before they are simply removed to be dealt with elsewhere, like a parcel marked “don’t return to sender”. To quote the UN rapporteurs again,
“any steps taken to legalize policies effectively resulting in the removal of migrants without an individualized assessment in line with human rights obligations and due process are squarely incompatible with the prohibition of collective expulsions and the principle of non-refoulement”.
The Government talk as if we take a disproportionate number of asylum seekers, yet the opposite is the case— that point was made earlier today, though it seems a long time ago now. As I asked earlier, what happens if other countries follow our lead and also put up the “no asylum seekers here” sign? The chances are that the numbers seeking asylum in the UK will go up, not down.
In practice, the general view, including that of the Law Society, is that removal of those deemed inadmissible will be very difficult in the absence of adequate third-country agreements, making the Bill, in effect, unworkable. The fear of the Refugee Council, the UNHRC and others is that it will mean many thousands left in semi-permanent limbo, at risk of destitution. As I said at Second Reading, the mental health implications are likely to be serious, as spelled out by the Royal College of Psychiatrists, which has many concerns about the Bill’s impact on mental health. For those who are removed to a third country, there is no guarantee that the country will be equipped to assess their asylum claim, so again they could be living in limbo, but out  of sight and out of mind of the UK Government. How can all this be described as compassionate and humane, as Ministers repeatedly do?

Bishop of Chelmsford: My Lords, I do not wish to delay the House for long, especially given the excellent speeches we have already heard delivered on this group, but I support the comments of the noble Lord, Lord Carlile, and the noble Baroness, Lady Chakrabarti, about retrospection. I add my support, in particular, to the noble Lord, Lord Coaker, and those other noble Lords who have tabled Amendment 11, on which we have already heard the comments of the noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss.
A succession of migration, public order and modern slavery Bills in recent years have drastically raised the length of sentences and the severity of punishments that can be brought to bear on people traffickers and smugglers. While this may look tough, it is difficult to say that it has had much impact; indeed, the entire purpose of this Bill is to try to put a stop to arrivals which have not, apparently, been impacted on at all by the deterrents that are already in place. Nor is this surprising, given the very low number of prosecutions and convictions for such offences. Regrettably, it seems that smuggling is a crime with enormous rewards but relatively little risk for the perpetrators. Instead, we seem to almost exclusively punish those who are smuggled, often in highly dangerous circumstances.
We know that securing prosecutions and convictions is incredibly difficult because it requires the willing co-operation of those who have been smuggled. This is no small thing, for they are often traumatised and often in significant debt to the smugglers. They may have friends and family abroad or here in the UK who will be put at risk if they come forward. That difficulty is only exacerbated by our migration enforcement policies, which also deter victims from coming forward for fear of the hostile environment, detention and removal—including potentially to Rwanda or some other third country with which they have no connection. There is little incentive to co-operate with law enforcement, and significant risk in doing so.
My fear is that the Bill as a whole will not improve this situation, but at the very least, Amendment 11 provides a modest mitigation of the damage, without undermining the effect of the Bill overall, by exempting those co-operating with law enforcement from the prospect of removal. I hope that Ministers will listen to this, or at the very least come back with detailed proposals for how victims, both of smuggling and of trafficking, slavery and other forms of abuse, can be better supported to co-operate and help bring down those who have abused them.

Baroness Bakewell of Hardington Mandeville: My Lords, I apologise for not being able to take part at Second Reading. I shall speak to Amendment 9 in the name of my noble friend Lady Hamwee, to which I have added my name.
This group of amendments concentrates on the duty to make arrangements for removal of migrants trying to enter the country. My noble friend set out very clearly the arguments for the amendments to  which she has added her name. Amendment 9 proposes that the whole of Clause 2(7) should be removed. This would ensure that the treatment of unaccompanied children will be considered under existing UK domestic legislation, whereby Section 55 of the Borders, Citizenship and Immigration Act 2009 puts a duty on the Secretary of State to safeguard and promote the welfare of children in any of their functions relating to immigration, asylum or nationality.
There have been previous exemptions for unaccompanied children. Current Home Office guidance on inadmissibility sets out boldly:
“Unaccompanied asylum-seeking children are not suitable for the inadmissibility process set out in this instruction”.
I am concerned that the Universal Declaration of Human Rights and the UN Convention on the Rights of the Child, which the UK ratified in 1991, are ignored by this piece of legislation. The UNCRC preamble indicates that a child warrants special “safeguards”, with Article 22 requiring that refugee children be treated similarly to any other citizen child on a non-discriminatory basis.
Other amendments to be debated later—I thought they might be reached this evening, but it will clearly be another day—will deal in more detail with the treatment of unaccompanied children, and I do not want to repeat myself. I will confine myself to mentioning a phrase which is repeated in many of the briefings I have received:
“The Illegal Migration Bill is an affront to the protections the UK should provide to children under the Refugee Convention, the UN Convention on the Rights of the Child and the Children Act 1989”.
Another frequently used phrase in the briefings is
“extremely vulnerable children who have fled conflict, persecution and other unimaginable harms and are in desperate need of support”.
The words “unimaginable harms” strike to the very heart of the matter. I cannot begin to contemplate what the harms might be, but they will not be good.
We are country with a proud reputation of accepting refugees. Unaccompanied children do not just leave their country of origin for anything other than exceptionally dire circumstances. We should be protecting them, and removing Clause 2(7) is a start in the right direction.

Lord Cashman: My Lords, I speak in favour of the amendments in this group, including my Amendment 8; I thank the noble and learned Lord, Lord Etherton, for adding his name to it. My amendment deals specifically with Clause 2(4) and would include persecution of a person on the basis of gender, sexuality and gender identity for the purposes of the third condition under which a person could be removed. However, I wish to now speak against Clause 2 and the duty to deport.
As we have heard from other noble Lords, the Bill seeks to give unprecedented powers to the Home Secretary to deport people without even a fair hearing of their case. The Home Secretary is in fact compelled to carry out that duty, even when it conflicts with  human rights protections. The Bill seeks to limit the circumstances in which legal challenges could prevent a removal and allows the Home Secretary to add or remove countries to the list of so-called safe countries. This is even more worrying, looking at Schedule 1. At present, four of the countries on that list are not signatories to the UN convention, and some may not even have a functional asylum system. I will come back to this later on a further grouping but, if a person were deported or returned to most of the countries on the list in Schedule 1, they would face discrimination on the grounds of their sexual orientation or gender identity. Nigeria is one that springs to mind.
Without the requirement to make individualised assessments about whether it is safe to remove a person seeking asylum, and in providing very limited opportunities for individuals to present evidence of the risks that they could face, there is a real concern that many refugees will be deported to a country where their safety is at risk, or returned to their home country where their life could be threatened again, as I have said. The refugee convention makes it clear that return is prohibited to any country where a refugee could face persecution and not just their own.
I return now to the thinking behind my own amendment. In passing through a so-called safe third country, I refer to the internationally accepted definition of a refugee, which makes reference to five possible grounds for persecution: race, religion, nationality, membership of a particular social group, or political opinion: UN General Assembly 1951, page 137. These grounds are also recognised as covering persecution on the basis of sexual orientation or gender identity and gender-based human rights abuses.
Such examples also illustrate that persecution may happen where the state is not itself the perpetrator. Although some definitions have in the past required this, it is not universal. I believe it is therefore right to expand within the Bill the acceptance of individuals becoming refugees both when persecution is perpetrated by the state and where there is a failure of the state to provide protection against persecution by others. On that basis, I commend my amendment to noble Lords.

Baroness Ludford: My Lords, I will quickly speak on Amendment 12, otherwise I fear there will not be a second voice in support of the very important issue of the potential impact of the Bill in respect of Northern Ireland. The Northern Ireland Human Rights Commission has pointed out that the human rights memorandum does not include an assessment of compliance of the Bill with Article 2 of the Windsor Framework, so my first question to the Minister is: will that memorandum be amended to include such an assessment?
The Bill raises significant concerns about compliance with the Belfast/Good Friday agreement and with the Windsor Framework, because the incorporation of the European Convention on Human Rights into Northern Ireland law was an explicit commitment of the Good Friday agreement and was achieved through the Human Rights Act. The Bill would constitute a breach of two core elements of this commitment: the guarantee of direct access to the courts and the obligation to provide remedies for breach of the convention,  under the relevant chapter of the agreement. That chapter extends to everyone in the community, which includes asylum seekers and refugees.
I believe the Bill is also inconsistent with obligations under Article 2 of the Windsor Framework, which details various equality and non-discrimination EU directives with which Northern Ireland must keep pace. This includes the victims’ directive and the trafficking directive. The potential for the Bill to lead to failures in identifying and supporting trafficking victims, as well as the provisions on detention and removal, would place Northern Ireland in direct contravention of those directives. I believe that the Government’s explainer document on the Windsor Framework, Article 2, acknowledges that its protections apply to everyone who is subject to the law in Northern Ireland. Asylum seekers are part of the community and therefore protected by the Rights, Safeguards and Equality of Opportunity chapter of the Good Friday agreement. I understand that in ongoing court proceedings—I prefer “continuing” court proceedings—the Home Office has not disputed the argument that the protections of the relevant chapter of the Good Friday agreement extend to asylum seekers and refugees.
The Bill instructs the Secretary of State to declare inadmissible any claim that removal of an individual would breach their convention rights, if that individual met the extremely broad criteria covered by the duty to remove. It says that this inadmissibility cannot be appealed, so if those provisions were applied to someone arriving in Northern Ireland, it would be a direct breach of the Belfast/Good Friday agreement because it makes convention rights inaccessible and restricts that individual’s direct access to the courts and remedies for breach of the convention. Also, the application of the Bill to land border crossings could constitute a breach of Article 2 of the Windsor Framework and indeed of its very objectives.
To try to compress all that down, it is a matter of considerable concern that there is a failure to address compliance with Article 2 of the Windsor Framework, and more broadly with the Good Friday agreement, in the human rights memorandum to the Bill. I will end where I started, which is to ask the Minister whether such an assessment is going to materialise.

Lord Etherton: My Lords, I have co-signed the amendment in the name of the noble Lord, Lord Carlile or Berriew, and that in the name of the noble Lord, Lord Cashman. I will make some very brief comments on both.
The principle against retrospection in statutory provisions is very long-standing and well-established because it upsets settled status and settled rights. It follows that it can, save in exceptional circumstances, operate both unfairly and so as to create legal uncertainty in the way that people conduct their affairs.
The best example of where retrospection would be appropriate is in relation to a finance Bill and Act giving effect to a Budget, with the time lapse between the two enabling people to enter into tax avoidance arrangements. But here it would be utterly impossible—certainly without any credibility—to suggest that those who are either crossing the channel or promoting that crossing unlawfully or illegally have organised their affairs,  or were ever likely to organise them, on the basis of the complex provisions of this statute. I have never heard anybody suggest to the contrary. For my part, I can see absolutely no sound reason why the normal rule—which is one of fairness and certainty, as I said—should be upset in this case.
I support the amendment in the name of the noble Lord, Lord Cashman, because extending the definition of the third condition to include gender identity and sexual orientation brings to the forefront something which has plainly been ignored in the drafting of the Bill. There is absolutely nothing in Schedule 1 which excludes from the places to which people can be removed those LGBT people who would undoubtedly face extreme persecution, varying from sentence of imprisonment to death and assault. Raising this issue here will, I hope, direct the Government and the Bill team to a serious lacuna in the legislation.

Lord Hope of Craighead: My Lords, I can be very brief. I have one amendment in this group, Amendment 39, which raises the same point as Amendment 6 in the name of the noble Lord, Lord Carlile of Berriew, on retrospectivity. I support all the amendments in his name to that effect. The only point I would have added would have been to read out my explanatory statement, which my noble friend Lord Kerr of Kinlochard has already done, placing particular stress on “for good reason”. If the Minister is not going to accept these amendments, I hope he can give the good reason in each case.

Baroness Lawlor: My Lords, I am puzzled by Amendment 6 and the reasons given by some of your Lordships for opposing the start date of 7 March 2023—a criticism made on grounds of retrospection. There is nothing unclear about the start date, and nothing hidden: 7 March is published as the start date for the Bill itself. It is the date of the Bill’s First Reading. I am also slightly puzzled by the desire to omit from subsections (4) and (5) of Clause 2 people who enter this country in breach of our Immigration Rules and do not come from a country in which their life and liberty are threatened.
Both amendments would remove clarity from the Bill, which will make matters clear to those to whom the provisions apply. The Bill aims to deter and prevent. A start date of the Bill’s First Reading is not only clear but fair and proportionate. Those coming to this country in breach of immigration control rules—often from France—know where they stand and what provisions will apply to them after 7 March. More importantly, the people of this country, who want the borders controlled, will see that no matter how protracted the gap between First Reading and the Bill becoming law, the arrangements under it will apply from 7 March.

Lord Carlile of Berriew: The noble Baroness has had quite a lot to say today about the wishes of the people of this country. Would she like to tell us what her evidence is that the wish of the people of this country is that people should be retrospectively affected by legislation of which they plainly had no awareness at the time when it had its First Reading?

Baroness Lawlor: I thank the noble Lord for his question. As far as I can see, the Bill was published on 7 March. It was very well publicised at the time. It is designed to deter—

Lord Carlile of Berriew: In Calais?

Baroness Lawlor: I think the noble Lord is not aware of the very good access to news which people coming to this country have—and which people traffickers have. It was no surprise that this Bill had its First Reading on 7 March.
I conclude on a point made earlier. This is not a Bill against asylum seekers; it is a measure to deter and prevent those coming to this country by unsafe and unlawful routes.

Baroness Bennett of Manor Castle: My Lords, I will go where I was going without being distracted. I am aware that there is no Green group name on any of these amendments, which is the result of an administrative hitch earlier in the week, so I will be very brief—I am also aware of the hour. I shall make just three points about this group of amendments.
First, we have discussed the issue of retrospectivity a great deal. I align myself with the comments of the noble Baroness, Lady Chakrabarti, among many others, who talked about approaching this as a lay person, which indeed I do as a non-lawyer. However, I have had a lot of contact with the law through my time as a journalist, and one of the things you learn is that the nature of the law is that they do not make laws retrospectively. That is in the general public understanding of what is law, so I associate myself with all the anti-retrospectivity amendments.
However, I particularly want to address Amendment 91, to which there has not been much attention given, which aims to prevent victims of human trafficking and modern slavery from having their leave retrospectively revoked to permit their deportation. This is leave granted to people under the Nationality and Borders Act 2022. I am sure many noble Lords taking part in this debate can think of victims of trafficking and modern slavery whom they have met. I am thinking of one in particular, whom I will not identify in detail. She was a person who had clearly been enormously mentally scarred by the experience of losing control of her own life and being a slave. To think that we would put them in this position again, having granted them status and then snatched it away, highlights the emotional damage that that would do to people.
Secondly, my favoured position is to write out this whole Bill but, if we do not do that, then that Clause 2 should not stand part. The noble Baroness, Lady Lister, made a powerful speech on this point. I want to raise a point no one else has raised. I ask the Minister to answer, although I expect he will be reluctant to, so maybe some of the other legal minds in the Committee can be put to this. Let us imagine that, after the next election, we have a change of government, and there has been written into law a duty for the Secretary of State to deport people. There is going to have to be an emergency Bill passed as soon as possible to stop that. I very much hope that would be the case for whoever the next the Government are. But there is going to be a total legal mess, I would imagine, when the people of  the country have elected a Government standing on a different platform—I would hope—but that is the law of the land. I am not sure where that would leave us; I do not know if anyone could help me with that one.
I also want to address why the duties to remove in Clause 2 should not remain. Some 90% of the people in need of international protection who come to the UK could not do so directly as defined by this Bill. The refugee convention prohibits states from imposing penalties on refugees for how they have entered the country, because most people have no choice but to enter a country irregularly. The convention explicitly states that you do not have to come directly to the country; there is no requirement of “first safe country”. That is the convention, yet we are writing this piece of this Bill. This clause simply must not stand part.
Thirdly, I want to identify particularly with Amendment 8. The noble Lord, Lord Cashman, and the noble and learned Lord, Lord Etherton, have already made this argument very powerfully. All I want to say is that my Second Reading speech addressed this issue at some length, and I would like to stress the Greens’ support for Amendment 8 in particular.

Lord German: My Lords, there are two matters in this group that are in my name, but I shall address just one of them briefly—the other matters having been covered by earlier speakers—and that is the issue about coming directly to the United Kingdom.
The UNHCR, in its legal opinion, says that the vast majority of people in need of international protection will meet those criteria of not being able to come directly to the UK. Almost 90% of people in need of international protection globally come from countries where it is impossible to come directly to the UK—there are no direct flights, nowhere to get a visa, nowhere to make any of the paper arrangements we have set up. We will come to the issue of safe routes later, but the question I have to ask relates to the role of the UNHCR in supporting those who are in need of protection.
Apart from the one relating to Afghanistan, the UNHCR states that there are only two active legal resettlement schemes in the UK. The first is the UKRS, which is the UK resettlement scheme. Since 2020, the UNHCR
“has been requested by the Government not to submit new cases other than in extremely compelling circumstances and on an ad-hoc basis, amounting to a handful per year”.
The second one is the mandate resettlement programme, which provides a pathway for refugees:
“An average of fewer than 25 people a year come to the UK on this route. … they must be identified and referred by UNHCR in accordance with criteria agreed upon with the receiving State”.
So, essentially, the UNHCR has been told that it can have probably about 25 and perhaps five or six more. That is the total—apart from the Afghani stream—from the resettlement schemes that are open. In his reply, perhaps the Minister could tell us how people can get to the UK directly from the places from which they are seeking refuge, and also how these people can be filtered so that only the 30 or so people who can currently come per year will be accommodated.

Lord Paddick: My Lords, this group covers a wide range of amendments concerning the duty to make arrangements for removal. To summarise, it shows  that the Government have not thought through the issues that arise from Clause 2. The noble Lord, Lord Carlile of Berriew, and the noble and learned Lord, Lord Etherton, have spoken compellingly about the unfairness and uncertainty of retrospection. My noble friend Lady Hamwee spoke about the impact on unaccompanied children affected by the retrospection caused by Clause 2. My noble friends Lady Suttie and Lady Ludford spoke about the extreme dangers around the impacts of Clause 2 on the arrangements between the north and south of Ireland. The noble and learned Baroness, Lady Butler-Sloss, spoke about the perhaps unintended consequences of impeding the prosecution of traffickers and perpetrators of modern slavery.
The noble Lord, Lord Cashman, and the noble and learned Lord, Lord Etherton, spoke about neglecting issues around sexual orientation and gender identity, which could be an extreme risk to people if they were to return to certain countries; they are completely left out of the Bill. My noble friend Lord German raised the important point about what it means when somebody has not come directly to the UK, and what the higher courts in this country have said about that. It was debated endlessly during the passage of the Nationality and Borders Act but goes even further in this Bill, which is why Clause 2 should not stand part of the Bill.

Lord Coaker: My Lords, much of what I want to say about Clause 2 standing part of the Bill will be reflected in what I say on Amendment 13 in the next group, as otherwise I will end up repeating myself.
I very much welcome Amendment 6 moved by the noble Lord, Lord Carlile, and the points he made on the retrospective nature of some of what is included in the Bill. It was a very powerful contribution that the Committee will need to reflect on. The amendment tabled by the noble Lord, Lord Cashman, and the noble and learned Lord, Lord Etherton, about the need to reflect sexual orientation and gender identity, is important as well. On Amendment 7 tabled by the noble Lord, Lord German, this issue of what is a safe country, and not being able to transit through a safe country, bedevils the Bill. The Minister cannot answer the question of how somebody gets here without going through a safe country if there is not a safe and legal route without flying. It is not feasible or possible.
I have always found astonishing the argument that nobody can come here if they travel through a safe country. If you take that to its extreme, it will mean that countries such as Italy, Spain and Turkey would have every single asylum seeker there was, because hundreds of thousands come through those countries. Are we saying that they should stay there? It is a shared responsibility. In Africa, some of the poorest countries in the world take millions of refugees. It is just not a feasible or credible statement to say that if somebody comes from a country where they are not threatened, they should stay there and claim asylum. It would essentially mean that no one would ever come here or be able to arrive in this country. It is a nonsense statement.
I thank the noble Lord, Lord Carlile, the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Hacking for their support for my  Amendment 11. I tabled it as a marker because it seeks to provide an exemption from the duty to remove for those people co-operating with the police on people smuggling. For the reasons that the noble and learned Baroness, the right reverend Prelate and others pointed out, that co-operation with the police is essential for us to get the criminals who are involved in people smuggling.
In Clauses 2 and 21 the Government talk about exemptions from the duty to remove for people who co-operate with the police on modern slavery and trafficking. One of the reasons I have tabled my amendment is because I want the Minister to spell out what that actually means, apart from the obvious. People need to know and understand that the Government are saying that, if the police believe that you have been trafficked or identify you as a victim of modern slavery, you will absolutely be exempted—no exceptions—from the duty to remove under Clause 2. It does not include people smuggling, which is why I have put it in my amendment, but it also tests, in Committee, what the Government mean by Clause 21 in particular, about exempting people with respect to modern slavery and trafficking. Does that mean exactly what it says—that those people will be exempt from the duty to remove? I look forward to the Minister’s response.

Lord Murray of Blidworth: My Lords, as the noble Baroness, Lady Lister, said, echoed by the noble Baroness, Lady Bennett, Clause 2 is the centrepiece of the scheme provided for in the Bill. At its heart, the Bill seeks to change the existing legal framework so that those who arrive in the UK illegally can be detained and then promptly removed, either to their home country or to a safe third country.
Clause 2 seeks to achieve this by placing a legal duty on the Secretary of State to remove those who come to the UK illegally. The duty applies where an individual meets the four conditions set out in Clause 2, which I will briefly rehearse.
The first condition is about the lawfulness of the person’s entry into the UK. This underlines the Government’s commitment to take all possible measures to stop people making dangerous journeys to enter the UK illegally, particularly across the English Channel.
The second condition is that the individual must have entered the UK on or after 7 March—the day of the Bill’s introduction in the House of Commons, as my noble friend Lady Lawlor noted. This is a crucial condition that will ensure that we do not create a perverse incentive for migrants to take illegal and dangerous journeys in an attempt to avoid being subject to the Bill’s provisions. I will return to this point in a moment.
The third condition states that the duty will apply to an individual who has not come directly from a country in which their life and liberty were threatened. That means that anyone entering the UK from another country where their life was not in danger will fall within the scope of the duty. This is consistent with our obligations under the refugee convention and upholds the principle that asylum seekers should claim asylum in the first safe country they reach. There is  manifestly no need for people to make those dangerous journeys when they are already in a country where they are safe or could, in the case of France, for example, claim asylum. It places themselves and others at risk and puts money into the hands of organised criminals.
The fourth and final condition is that an individual requires leave to remain but does not have it. The duty to make arrangements for removal is subject only to very limited exceptions signposted in Clause 2(11), which we will come on to at a later date when we come to a later clause.
The fundamental point is that, subject to these limited exceptions, the Home Secretary will be under a clear and unambiguous legal duty to make arrangements for the removal of persons from the UK who satisfy those four conditions. She should not be deflected from fulfilling that legal duty. These provisions make it very clear that if you meet these four conditions you will not be able to make a new life in the UK.
A number of the amendments in this group relate to the four conditions I have described. Amendment 6 tabled by the noble Lord, Lord Carlile, relates to the second condition. In effect, this and other amendments tabled by the noble Lord seek to do away with the backdating of the duty to remove so that it applies only to those who illegally enter the country from the date of commencement rather than from 7 March. Amendment 39 in the name of the noble and learned Lord, Lord Hope of Craighead, deals with the same point.
The explanatory note to the noble and learned Lord’s Amendment 39 sums up the position well, as was noted by the noble Lord, Lord Kerr. It says:
“This amendment seeks to give effect to the principle that, unless for good reason, legislation should operate prospectively and not retrospectively”.
I was challenged by the noble and learned Lord to explain what that good reason was. The Government entirely agree with the explanatory note from the noble and learned Lord, Lord Hope. The Committee will know that it is not uncommon in exceptional circumstances for legislation to have retrospective effect, as the noble Baroness, Lady Chakrabarti, noted. But as the noble and learned Lord has acknowledged, there must be good reason for such exceptions. I suggest to the Committee that there is good reason in this instance for retrospection.
I would say that the retrospective nature of these provisions is critical. Without it, we risk organised criminals and people smugglers seeking to exploit this with an increase in the number of illegal arrivals ahead of commencement of the provisions in the Bill. This would likely lead to an increase in these unnecessary and dangerous small boat crossings and could even place more pressure on not only our asylum system, but our health, housing, educational and welfare services, not to mention our services for saving lives at sea.

Lord Paddick: Can the Minister explain why in that case the Nationality and Borders Act does not have a retrospective clause? What evidence does the Minister have, having announced the retrospective elements and that the provisions apply from when the  Bill was first introduced into the House of Commons? What deterrent effect have we seen in terms of reducing the number of boat crossings?

Lord Murray of Blidworth: Certainly. The structure of the Nationality and Borders Act 2022 was very different. It was not a Bill like this one, which focuses on a duty to remove and is targeted at creating a disincentive effect on people crossing the channel. This is a very differently structured piece of legislation and therefore the retrospective element is a vital and logical part of the scheme in the Bill.
As to the evidence of the deterrent effect taking effect from the date of introduction, this is seen potentially in the fact that—and one can only draw inferences from the figures—it would appear that the numbers are down on this time last year. I accept that the weather has facilitated a good measure of that, but it is certainly right to say that had there not been a retrospectivity measure in the Bill I would conjecture that the numbers crossing the channel would have been far higher. It would have been easy for people smugglers to advertise their services—and I will come to this in a moment—as something of a fire sale, saying, “Get across the channel now. Here’s your opportunity before these measures in the Government’s new scheme take effect”.
The provision in the Bill does not mean that all those who enter the country illegally on or after 7 March will be subject to the duty to remove in Clause 2(1). We have expressly provided in Clause 4(7) that asylum and human rights-based claims made on or after 7 March may be decided by the Secretary of State prior to the commencement of Clause 4. Where a person is then granted leave to remain, they will not be removed.
The noble Lord, Lord Carlile, noted that retrospectivity is problematic because it impinges on legal certainty. The key here is that we have been clear in the Bill and in the public messaging—for example, in the statement given by my right honourable friend the Prime Minister and the other messaging—that this is the date when the scheme will commence. That means that there can be no uncertainty about the Government’s intention. While I accept that this is unusual in our legal system, it is not unheard of. The Revenue sometimes announces intended changes to tax law which are then later introduced by Finance Bills but backdated to the date of the announcement. In those cases, it is usually to prevent a closing-down sale of improper tax structures. There, retrospectivity is designed to protect tax revenue. Here, it is to prevent a closing-down sale of dangerous, sometimes fatal, channel crossings in the lead-up to some prospective date. We do not take this step lightly but feel it is necessary to reduce this perverse incentive.
I say “reduce” advisedly. The noble and learned Lord, Lord Etherton, has pointed out that migrants on the other side of the channel may not be as well advised as some taxpayers, but it is clear they are alive to changes in policy in the UK. For example, it is clear that announcements of a change in the approach to Albanian illegal migrants has led to a very significant dropping off of that cohort in the small boats, even before removals have begun at scale. This shows that the criminal gangs and migrants are aware of  policy announcements in the UK, as my noble friend Lady Lawlor has pointed out. Similarly, the original announcement of the Rwanda scheme was known in the camps in Calais, with some suggesting in reporting that asylum seekers sought to go to the Republic of Ireland instead to avoid being sent to Rwanda. Indeed, the then Taoiseach Michael Martin noted a surge in applications and partly blamed the Rwanda announcement.
While clearly announcing the start date of the new scheme may not have had a decisive impact, it is important to do everything we can to discourage those dangerous journeys. Announcements such as this can have an impact on behaviour, and we hope they will reduce the incentive for a surge in dangerous crossings, perhaps at a time when the weather makes crossing very dangerous. To answer the question asked by the noble Lord, Lord Carlile, these are the compelling and exceptional circumstances that justify this decision.

Baroness Chakrabarti: I apologise to the Minister for intervening at this late hour. If I understand him correctly, it will now be permissible to legislate retrospectively in any case of criminality because, by definition, it is very important not to have a fire sale. If we believe that certain conduct is wrong and there is a gap, whatever that conduct is, and if it is a serious enough matter to legislate in criminal terms, for example, it would now and in the future be permissible to legislate retrospectively.
My second point is that the Minister seems to suggest, like his noble friend Lady Lawlor, that because Ministers have announced a prospective change in the law, that should be good enough, because presumably we now believe that executive fiat and ministerial announcements and pronouncements are enough to suggest to people, not just in our own country but across the world, that that is what the law is and will be and always was. Have I understood the Minister correctly on this point?

Lord Murray of Blidworth: No, I am sorry to say. Clearly the position is not that in every case where there is a change in the criminal law it should have retrospective effect to the date of the Bill’s introduction. That is absolutely not what I am saying. What I am saying is that, in this context, to prevent a rush of people into these dangerous vessels, crossing the channel at a time when there is potentially bad weather, those were the special circumstances that justified retrospection in these provisions. To go back to one of the last major Bills to go through your Lordships’ House, which became the Public Order Act, I would not dream of suggesting that the offence of locking on should have had retrospective effect to the date of the introduction of the Bill; there would have been no exceptional circumstances for that.
While I am on the topic of the speech just given by the noble Baroness, Lady Chakrabarti, I would like to address her suggestion that limited retrospectivity will lead to refoulement. This is clearly not the case. I can do no more than repeat that this Bill does not allow refoulement. It does not allow the Government to  remove individuals to places where they will be in danger—and that, quite rightly, is under the supervision of the courts.
In particular, I would refer noble Lords to the clauses in the Bill relating to suspensive claims—Clauses 37 to 50—which allow Upper Tribunal judges to determine whether an individual faces a risk of “serious and irreversible harm”. If such a case is made out, the individual will not be removed to that place.
Amendment 7 tabled by the noble Lord, Lord German, relates to the third condition and to the issue of whether a person has or has not “come directly” from a country where their life and liberty were threatened. It is right that we prioritise protection for the most vulnerable people arriving through safe and legal routes rather than those who are strong or rich enough to have journeyed through safe countries and paid the people smugglers before they reach the UK.
In answer to the question put by the noble Lord, Lord German, repeated by the noble Lord, Lord Coaker, people seeking sanctuary should apply for asylum in the first safe country they reach. There is no uniform international interpretation of the many concepts of the refugee convention. However, the Vienna Convention on the Law of Treaties provides the treaty to be interpreted “in good faith”. It is on this basis that we have set out our interpretation of “come directly” through Clause 2. I might add that, were Amendment 7—

Baroness Lister of Burtersett: The Minister is beginning to address the question that I have raised twice: why should we accept this Government’s interpretation of the refugee convention over and above that of the body that is given authority by the UN to interpret it for the international community? Every other organisation that has briefed us has followed the UNHCR in its interpretation and there are very real fears of refoulement. As a noble Lord opposite said earlier. the reason given seems to be “Because we say so”, as you would say to a child. That is not good enough. We want to know exactly why we should accept the Government’s interpretation.

Lord Murray of Blidworth: I thank the noble Baroness for that intervention. The reality is that the Government take legal advice. The UNHCR is clearly a UN body; it is not charged with the interpretation of the refugee convention. Some parts of the UNHCR have views on the Government’s position, but it is always worth recalling that the UNHCR itself maintains refugee arrangements and accommodation in Rwanda. In December, the High Court considered the submissions from the UNHCR and discounted what was said. So I invite the noble Baroness, rather than simply taking the Government’s word for it, to review the judgment of the Divisional Court, a careful and considered judgment, which considered the legality of the removal scheme.

Lord Hannay of Chiswick: The Minister has latched on to the wrong point—not the point that the UNHCR has made again and again that it is not compatible with the obligations of our membership to refuse to consider a request for asylum. It is nothing to do with Rwanda; it is to do with refusing a request for  asylum. The Minister admitted earlier that there is no explicit provision in the refugee convention that permits us to do that. That is the basis of the UNHCR’s position. Frankly, his suggestion that there are differences of opinion in the UNHCR is pretty contemptible. The High Commissioner for Refugees has said he does not think this is compatible.

Lord Murray of Blidworth: I am afraid that I again find myself at odds with the noble Lord. The reality is that the UN itself relocates refugees to Rwanda. As I say, there is no suggestion that people’s asylum claims will not be dealt with under this scheme; their asylum claim will be dealt with in Rwanda once they are removed, and that is entirely compatible with the convention. There is no requirement on a member state of the convention to determine asylum claims within its own territory. That is abundantly plain.

Lord Kerr of Kinlochard: The Minister says there is no requirement in the convention for a convention state to handle an asylum request on its own territory, but surely the deal with Rwanda rules out our ever hearing these cases. In Rwanda, people are allowed to apply for asylum in Rwanda, but their case for asylum in the United Kingdom will never be admitted. Is that not correct?

Lord Murray of Blidworth: That is entirely correct, yes. Their asylum claim will be determined by the Government of Rwanda. That is the system that the High Court found to be entirely lawful in December.
If Amendment 7 were agreed, removing the third condition, the duty to remove would also apply to those who had come directly from a country where their life and liberty were threatened, and I am sure that is not what the noble Lord would want.
Amendment 8 in the name of the noble Lord, Lord Cashman, also relates to the third condition. I put it to the noble Lord that the wording in Clause 2(4), referring to threats by reason of a person’s race, religion, nationality, membership of a particular social group or political opinion, reflects the definition of a refugee in Article 1 of the refugee convention. We have heard a lot today about adherence to the refugee convention and other international treaties. There may be a case for amending the definitions in the convention to reflect the world of today rather than what it was in 1951, but we should not put the cart before the horse and insert wording in the Bill at odds with the current wording of the convention.
I add that the reference to membership of a particular social group may, on the facts of a particular case, cover a person fleeing persecution on the basis of their gender, sexual orientation or gender identity. Lastly, it is not right to suggest, as the noble Lord does, that the Bill removes individualised assessments. It does not. Officials will make assessments and those can be challenged, including by way of suspensive claims, as we have already discussed.
Amendment 9 tabled by the noble Baroness, Lady Hamwee, would remove subsection (7). This ties in with the fourth condition, which is that a person  requires leave to enter or remain in the UK but does not have it. We will have a fuller debate about unaccompanied children later in Committee, but subsection (7) recognises that the duty to remove does not apply to unaccompanied children, and where they are not to be removed under the power conferred in Clause 3, the expectation is that they will normally be provided with temporary permission to remain in the UK until they are 18 years old under provisions to be made in the Immigration Rules. If subsection (7) is removed from Clause 2, an unaccompanied child given this temporary permission to remain would not then satisfy the fourth condition, thereby undermining our approach to unaccompanied children. As I say, we will have a fuller debate on this issue when we get to Clause 3, which feels like some time away.
The noble Baroness, Lady Hamwee, also has Amendment 10, requiring the Home Secretary to inform people when it has been decided that the duty to remove applies to them. Such information would include providing details of any evidence relied upon to make that decision. We have already provided, in Clause 7(2), for a person to be issued with a removal notice detailing, among other things, their right to make a suspensive claim. It is implicit in these provisions that the issue of a removal notice follows a determination that the person satisfies the four conditions in Clause 2. The four conditions relate to issues of fact. A person in receipt of a removal notice will themselves know, or ought to know, whether the conditions apply. If they have compelling evidence that the Home Secretary has made a mistake of fact, they can submit a factual suspensive claim to challenge the removal notice. We will return to those provisions, too, in due course in Committee.
Amendment 11 was spoken to by the noble Lord, Lord Coaker, and others. As we will come on to in later clauses, we have made particular provision for potential victims of modern slavery who are co-operating with law enforcement agencies, and it is necessary for them to remain in the UK in furtherance of such co-operation. In later debates, we will address the wider issue of the progress being made by the NCA and others in tackling the criminal gangs that are not perpetuating human trafficking but are engaged in people smuggling. It is worth also noting, in response to the noble and learned Baroness, Lady Butler-Sloss, that if an individual who had been trafficked came forward, they would be sent only somewhere where they would be safe—whether their own home country, if it was safe, or a safe third country. In all cases, they would no longer be in the control of their trafficker.
A key purpose of the Bill is to break the business model of the people smugglers. That will not happen if we undermine the central tenet of the Bill: that if you come here illegally you cannot stay, and instead you will be liable to detention and promptly removed. If we build exceptions and loopholes into the fabric of the Bill, it will be undermined and will not work. If those coming over on small boats have information that will assist in the investigation of people-smuggling offences, they can provide it, but this cannot be a reason to delay removal. Any co-operation with law enforcement agencies can, if appropriate, continue from abroad. If the experience of the pandemic has  taught us anything, it is that a lot can be achieved remotely. Indeed, our domestic courts and law enforcement are well used to this by now.
Finally, Amendment 12 in the name of the noble Baroness, Lady Ritchie of Downpatrick, deals with the issue of entry into the United Kingdom over the Irish land border. We discussed this at length during the dinner break business yesterday in relation to the recent SI on electronic travel authorisation. I note that this is a probing amendment relating to the concerns that have been raised regarding tourists and other people who inadvertently arrive in the UK from the Republic of Ireland via the land border with Northern Ireland. As is currently the case, tourists from countries requiring visas to come to the UK as visitors should obtain these before they travel. That is as it should be. That said, I recognise the issue she has raised and accept that some individuals may, entirely unwittingly, enter the UK without leave via the Irish land border, as I said yesterday.
We are examining this issue further. I would point the noble Baroness to the regulation-making power in Clause 3, which will enable us to provide for exceptions to the duty to remove where it would be appropriate to do so.
The noble Baroness, Lady Finlay, asked me about the status of a child born in the UK to a woman who meets the conditions in Clause 2. The short answer is that the child will not satisfy the conditions in Clause 2, but I will write to her with a more detailed explanation.
The noble Baroness, Lady Ludford, asked about compatibility with article 2 of the Windsor Framework. There is a later amendment to which she has added her name, Amendment 137, on this very issue. We will come on to that later in the Committee.
As I indicated at the start, this clause provides the foundations for the Bill as a whole. It is fundamental to the effective operation of the scheme and my fear is that the amendments put forward would serve only to weaken the effectiveness of the scheme. On that basis, I invite the noble Lord, Lord Carlile, to withdraw his amendment.

Baroness Butler-Sloss: My Lords, there was an issue about adoption of a child who came to this country, or came in the womb of somebody arriving in the country, into a British family. Are they at danger under the Bill?

Lord Murray of Blidworth: Forgive me: as I thought I said, the status of a child born in the UK to a woman who meets the conditions in Clause 2 is that they would not satisfy the conditions in that clause. I realise that there were a number of hypotheticals in the way that that question was written. If I may, I would like to go away and think about them. I will reply by letter in due course, and obviously publicise that letter.

Baroness Ludford: The Minister talked about an amendment that I had co-signed. Was it Amendment 132?

Lord Murray of Blidworth: It was Amendment 137.

Baroness Ludford: Sorry—I will look and check that it covers the point.

Baroness Bennett of Manor Castle: The Minister, not to my surprise, did not address my question about what happens after the election. I will phrase the question another way. In your Lordships’ House, we often ask about “must” and “may” provisions. Rather than a duty to remove, surely the Government could make it that the Secretary of State “may” remove. That would allow this Government to act as they wish but would not attempt to tie the hands of any future Government.

Lord Murray of Blidworth: I am afraid the structure of the Bill is that it creates a duty on the Secretary of State. That is in order to send the deterrence message that entering the country illegally is unacceptable and to reduce the number of people crossing the channel. I am afraid to say that it is a logical step that if the Government were to change, then it would be open to that other Government to pass legislation of their own. That is democracy.

Baroness Chakrabarti: I am very grateful to the Minister for his patience, but it is not quite right that that is the reason for the “must”, is it? It is not to send a signal to all those people overseas who are reading our draft legislation; it is to give a direction to our courts. The Home Secretary is choosing to tie her own hands. It is really in order to oust the jurisdiction of the courts and their ability to say that where the Secretary of State has a choice, they should exercise that choice in compliance with international law.

Lord Murray of Blidworth: Clearly, the intent is to send a message—that people really must not make these dangerous journeys across the channel. As I say, all the avenues of legal challenge are open but there are only two categories that will suspend removal. There are a number of provisions—I am sure the noble Baroness and I will be debating them at length over the coming days in Committee—and that is how the Bill will have its effect.

Baroness Lister of Burtersett: Could I ask that the Minister copies everyone who took part in this debate into the letter he is going to send, because it is of interest to many of us?

Lord Murray of Blidworth: I will certainly place a copy in the Library of the House. I hope that suffices. I am sure that my private office can work out who is here and is participating.

Lord Carlile of Berriew: Before the noble Lord stands up again, I feel I should bring this debate to a close. I am grateful to all noble Lords who have spoken in this debate, particularly those who supported the amendments in my name. A number of other very interesting issues have been raised. I have no doubt that we will be returning to a number of them on Report; I certainly will.
The reasons given by the Minister for what he recognises is the exceptional course of retrospectivity—I am using his words—involved conjecture: a conjecture that a very small change in the numbers, for whatever reason, of people coming on boats shows that the retrospectivity is working. I have been a Silk for 39 years. Along with the noble Lord, Lord Paddick, we have probably met more criminals than the rest of this Committee added together. My observation would be a rather less naive one than that made by the Minister. Criminals are infinitely adaptable. If the Government think that the boats are being stopped, it is not evidence that fewer people are coming into this country, because there are different ways and means of doing it.
From what we have heard today—maybe on Report we will hear something different—I really believe that the case for exceptionality is far from proved. I take   the view, therefore, that we will have to come back to these subjects. I urge the Government to meet noble Lords who have spoken in these debates before Report so that we can see whether there is some common ground we can find that will make this a better Bill rather than a battleground in your Lordships’ House. For the time being, I beg leave to withdraw Amendment 6.
Amendment 6 withdrawn.
Amendments 7 to 12 not moved.
Clause 2 agreed.
House resumed.
House adjourned at 10.51 pm.